On March 16, 2022, New York Governor Kathy Hochul signed into law three bills that affect the sexual harassment claim landscape in New York State. Several additional laws are pending in the NYS Legislature and, if passed, will have additional consequences for employers’ defenses against sexual harassment and discrimination claims by NYS employees.
| Bill No. | In Brief | Effective Date | Enacted |
|---|---|---|---|
| S5870 | Amends existing law to prohibit release of an employee’s personnel file in retaliation for an employee’s complaints about employer’s discriminatory practices. | March 16, 2022 | Yes |
| S812a | Creates a toll-free, confidential workplace sexual harassment hotline. Requires employers to post and otherwise advise employees about the existence of this hotline in employer-provided materials. | July 14, 2022 | Yes |
| S3295a | Amends New York Human Rights Law to apply to all public employees and officials, including any elected official, of the New York state executive, legislature, or judiciary, including persons serving in any judicial capacity, and persons serving on the staff of any elected official in New York State. | March 16, 2022 | Yes |
| S738 | Known as the Let Survivors Speak Act, this law would amend the General Obligation Law to prohibit settlement agreements in matters involving discrimination, harassment or retaliation from containing inter alia (1) non-disparagement or non-disclosure clauses, (2) clauses calling for forfeiture of all or part of consideration for violation of non-disclosure or non-disparagement clauses, or (3) clauses requiring any affirmative statement, assertion, or disclaimer by the complainant that the complainant was not in fact subject to unlawful discrimination, including discriminatory harassment, or retaliation. | Passed by Senate. Not yet passed by Assembly. | No |
| S766 | Amends General Obligations Law to prohibit releases or settlement agreements between employees (or general contractors) and employers to contain a “no rehire” clause.” The amendment does not preclude anemployee and employer from agreeing to terminate an existing employment relationship as part of a settlement of a claim. | Passed by Senate. Not yet passed by Assembly. | No |
| S566a | Extends the statute of limitations for administrative claims resulting from unlawful discriminatory practices to three years. | Passed by Senate. Not yet passed by Assembly. Effective 90 days after enactment. | No |
| S849a | Extends the statute of limitations for harassment in the workplace to six years under the NYHRL. | Passed by Senate. Not yet passed by Assembly. Effective 60 days after enactment. | No |
The above collection of local legislative efforts significantly increases the costs of employee sexual harassment complaints for the employer in New York State. It also comes on the heels of a federal law passed in early March, know as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, which limits the use of pre-dispute arbitration agreements and class action waivers covering claims of workplace sexual assault and sexual harassment. This trend of increasing protections for employees victimized by sexual harassment and assault in the workplace sends a strong signal to business owners and human resources professionals to carefully audit their internal practices, business communications, and employee contracts.
Next Steps
Employers should audit their current investigative practices concerning all allegations of sexual harassment in the workplace. They should ensure that appropriate protective measures are being taken during investigations, proper interview and documentation practices are being followed, and confidentiality, due process, and non-retaliation obligations are upheld.
This trend of increasing protections for employees victimized by sexual harassment and assault in the workplace sends a strong signal to business owners and human resources professionals to carefully audit their internal practices, business communications, and employee contracts.
Employers should also review and update any employee policies, handbooks, communications, and employee contracts, for prohibited waivers, obligations and representations concerning sexual harassment investigations and prohibitions. This will include updating your sexual harassment training training materials, as well as reviewing your current sexual harassment policy, individual employee contracts, non-disclosure agreements, separation agreement templates, and any pre-employment arbitration agreements.
As always, Woltz & Folkinshteyn, P.C. attorneys are here to help your organization’s policies and documents stay current with these and other new changes to the labor & employment landscape.
Super helpful – thanks!