In March 2022, New York Governor Kathy Hochul signed into law three new bills that strengthen New York State’s anti-harassment and anti-discrimination laws. These three enacted laws address (i) the disclosure of employee personnel records in retaliation for participating in a protected activity, (ii) the establishment of a sexual harassment hotline operated by the State and (iii) exposure of public employers to the New York State Human Rights Act (NYSHRL). Employers should also keep an eye out for four legislative bills in the works, as they will further impact employers’ legal obligations under New York State’s anti-harassment and anti-discrimination laws.
Newly enacted laws
Prohibition on disclosing personnel records for retaliatory purposes
Effective immediately, Senate Bill S5870 amends NYSHRL by expanding the definition of “retaliation” to include an employer disclosing an employee’s personnel records because the employee has (1) filed a complaint of unlawful discriminatory practices, including workplace harassment; (2) has objected to any practice prohibited by the NYSRHL; or (3) filed a complaint, testified, or participated in any proceeding under the NYSHR, or any other judicial or administrative proceeding. Employers are also prohibited from disclosing employee personnel records in order to discredit employee complaints of workplace harassment or discrimination. Individuals have a private right of action for such claims, and the Attorney General may bring an action or proceeding in the Supreme Court of the State of New York if there is evidence that an employer was, is or is about to be in violation of the unlawful discriminatory retaliation provisions. It is important to note that the law expressly authorizes employers to disclose personnel records during the introduction or response to a complaint in any legal or administrative proceeding.
State-run workplace sexual harassment hotline
On July 14, 2022, Senate Bill A.2035B will take effect and establish a statewide toll-free confidential hotline that will provide advice and assistance to those concerned about sexual harassment in the workplace. The state’s Human Rights Division, in conjunction with the state’s Department of Labor, will employ pro bono attorneys experienced in providing counseling related to sexual harassment, to assist anyone who calls. Notably, the hotline is limited to complaints of alleged sexual harassment; it does not provide a resource to employees who are victims of alleged discrimination based on any other protected characteristic, such as race, age, national origin, religion or immigration status. The law is unclear as to how the state will implement procedures to assess the veracity of claims made, and this will likely be a concern in the future. Regardless, employers are required to include the hotline number in all sexual harassment publications and policies as of July 14, 2022.
State and Public Employers Subject to New York State Human Rights Law
Effective immediately, Senate Bill S3395A expands the definition of “employer” under the NYSHRL to include public employers, specifically New York State, and its cities, counties, towns, villages, and other political subdivisions. The bill also clarifies that the NYSHRL will extend to New York State employees, including elected officials, persons performing judicial duties, and persons on the staff of any of these officials.
As mentioned above, there are four potential bills in the legislative pipeline that would increase the statute of limitations for filing sexual misconduct claims and limit the inclusion of certain clauses in settlement agreements or releases of claims. These bills have all been passed by the Senate and are currently being considered by the Assembly.
Potential extension of the statute of limitations for claims of discrimination
Senate Bill S566A seeks to extend NYSHRL’s statute of limitations for filing discrimination complaints with the New York State Department of Human Rights (NYSDHR). Currently, the law provides a one-year statute of limitations for filing most employment discrimination complaints and allows three years to file sexual harassment complaints. The amendment would allow up to three years to file any discrimination complaints with the NYSDHR.
Senate Bill S849A would amend New York Civil Law and Practice Rules (CPLR) to extend the statute of limitations for bringing a civil lawsuit for unlawful discrimination from three to six years.
Potential Limits on Settlement Agreements or Releases of Claims
Senate Bill S738 seeks to clarify New York’s General Obligations Act, which imposes limits on employment-related settlement agreements. The law would first clarify that it includes settlement agreements resulting from discrimination complaints filed by independent contractors. The law would also add new provisions that would make any waiver of a claim of discrimination, harassment, or retaliation unenforceable if the waiver is included in a settlement agreement that requires the plaintiff to pay damages or waive all or part of the claim. consideration received for a violation of the non-disclosure or non-disparagement clause or if it requires the complainant to make an affirmative statement that he or she was in fact not unlawfully discriminated against.
SB738 would also require employers to inform employees that nothing in the release or agreement prevents them from speaking with the New York Attorney General, law enforcement, EEOC, state or local human rights commission. the man or a lawyer.
This bill would also amend Section 5-336 of the New York General Obligations Act, which currently requires that all nondisclosure agreements or confidentiality clauses relating to the resolution of discrimination complaints include a cooling off period. full 21 days before this provision is recorded in an agreement. . If passed, the bill would allow complainants to consider including a non-disclosure or confidentiality clause before the 21-day waiting period expires and reach an agreement before the expiration of the 21-day waiting period. expiration of 21 days.
Senate Bill S766 seeks to ban no-rehire clauses in settlement agreements. No-rehire clauses generally protect employers from retaliatory claims in the event that a plaintiff agrees to a settlement, reapply for employment with the employer, and then sue the company again when not hiring. If the bill passes and a release agreement contains a no-rehire clause, the release of claims will not be enforceable, but the employer will still be bound by all other provisions of the settlement agreement, including the obligation to pay an agreed sum. on the settlement amount. However, the bill does not prohibit (i) the termination of the employee if mutually agreed upon as part of a settlement or (ii) automatically require an employer to rehire an employee who had already settled a case against the employer.
What should employers do now?
In response to SB 5870, employers must first inform their human resources personnel and supervisors of the potential legal ramifications of disclosing an employee’s personnel file. And beginning July 14, 2022, employers should also update all future sexual harassment postings and policies to include the hotline number in response to SB A.2035B. Finally, employers must take diligent steps to ensure their workplaces are free from discrimination and harassment, as it is clear that New York State will continue to lead the country with some of the most protective laws. against harassment and discrimination in the workplace. If these pending laws are enacted, employers may need to revise their standard separation and settlement agreements.