On August 12, 2019, Governor Andrew Cuomo signed into law a recently passed bill that dramatically alters the landscape of workplace discrimination and harassment protections in New York State. As we reported in our June 2019 Client Alert, the Democratic-controlled New York State Legislature passed a sweeping bill extending workplace protections against all forms of discrimination and harassment on a scale not seen in recent memory. That bill contained amendments to several laws, including the New York State Human Rights Law (“Human Rights Law”) and New York Labor Law, and, among other things:
- Makes all employers, regardless of size, subject to the Human Rights Law;
- Makes it easier for employees to prove harassment;
- Allows successful plaintiffs to recover attorneys’ fees and punitive damages; and
- Extends to three years the time individuals have to file a charge of sexual harassment with the New York State Division of Human Rights (“Division”).
Now that Governor Cuomo has signed the bill into law, employers must be prepared to address the changes brought about by the new laws.
All Employers Will Be Covered by the Human Rights Law
Effective February 8, 2020, all employers in New York State, regardless of size, will be subject to the Human Rights Law.
Currently, the Human Rights Law applies only to employers with four or more employees – except for the prohibition against sexual harassment that applies to all employers. As a result, for the first time, numerous small employers in New York State will have to comply with the Human Rights Law.
It Will Be Easier for Employees to Prove Harassment
As of October 11, 2019, the threshold for illegal workplace harassment will be lowered dramatically. Employees will no longer have to prove that workplace conduct was “severe or pervasive” to establish illegal harassment under the Human Rights Law, as is required under federal law. Instead, employers will be subject to liability for harassment if an employee experiences conduct that is effectively anything more than “petty slights and trivial inconveniences.” While employees will still have to prove that the conduct was based on a protected characteristic, the new law also provides that an employee does not have to compare his or her treatment to another employee to prevail. The new law also removes an employee’s failure to use an employer’s complaint procedure as a bar to suing for harassment.
Nonemployees Will Be Protected from All Forms of Harassment
Last year, the Human Rights Law was amended to protect nonemployees in the workplace, such as contractors and vendors, from sexual harassment. Effective October 11, 2019, nonemployees will now be protected from harassment based on any characteristic protected by the Human Rights Law, such as race, age and disability.
Attorneys’ Fees and Punitive Damages Will Be Recoverable for All Employment Claims
Also effective October 11, 2019, attorneys’ fees and punitive damages will be recoverable in all employment discrimination and harassment claims under the Human Rights Law filed on or after that date. Currently, in the employment context, punitive damages are not recoverable and attorneys’ fees are only recoverable where the basis of the discrimination or harassment claim is sex.
Employees Will Have More Time to File an Administrative Charge for Sexual Harassment
Effective August 12, 2020, the time an individual has to file a charge with the New York State Division of Human Rights for sexual harassment in employment will increase from one year to three years.
Sexual Harassment Policies and Training Materials Must Be Provided in Writing in Both English and an Employee’s Primary Language
As a result of changes in the law enacted last year, all employers are required to have a sexual harassment policy and to provide all employees with annual sexual harassment training. The bill signed into law by Governor Cuomo extends those training requirements by immediately requiring that at the time of hire, and at every annual sexual harassment training, employees receive a written copy of the employer’s policy and the sexual harassment training materials in both English and the language identified by each employee as his or her primary language. The Division of Human Rights is charged with making available to employers template policies and training materials in both English and such other languages as the Division deems appropriate, which employers will be able to use to meet these notice requirements. Where an employee identifies as his or her primary language a language for which the Division has not published a template, an employer will be able to comply with the notice requirements by providing the employee an English-only notice.
Mandatory Arbitration Is Prohibited for All Forms of Discrimination and Harassment
Last year, New York State amended the New York Civil Practice Law and Rules (CPLR) to ban mandatory arbitration of any claim based on sexual harassment. Under the newly enacted law, effective October 11, 2019, mandatory arbitration will be banned for all forms of discrimination and harassment prohibited by any law, including the Human Rights Law. However, the ban’s legality is in flux as at least one federal court in New York State has held that the ban enacted last year violates federal law.
Nondisclosure Agreements Will Be Further Restricted
In July 2018, the New York General Obligations Law and CPLR were amended to prohibit nondisclosure clauses in any agreement settling or resolving any claim or action involving sexual harassment that prevent the disclosure of the underlying facts and circumstances of the claim or action, unless it is the complainant’s preference to include such a clause. The complainant must also receive 21 days to consider the clause and then have seven (7) days to revoke it.
Under the newly enacted legislation, as of October 11, 2019, such nondisclosure clauses will be prohibited in any agreement settling or resolving any claim or action involving any claim of discrimination or harassment – not just those involving sexual harassment.
The new law also prohibits any clause that restricts a complainant’s ability to file a charge with, or provide information to, any federal, state or local agency, or to disclose information necessary to receive unemployment benefits, Medicaid or any other public benefit.
As a result of these proposed and earlier changes, employers must be even more vigilant in preventing discrimination and harassment, as well as responding to and investigating claims when they arise. To meet these challenges, employers should ensure that all employees, managers and supervisors are properly trained on their policies against discrimination and harassment and how to report it when it occurs. Employers that need assistance with complying with the new laws should contact one of Phillips Lytle’s experienced employment attorneys.