A majority of employers with offices in New York or employees working remotely in New York will likely be affected by two new bills that were signed into law by New York’s governor, Kathy Hochul, on March 16, 2022. With more bills likely to follow, Senate Bills S5870 and S812B provide additional support and strengthens protections for employees in the workplace. In the wake of former New York Governor Andrew Cuomo’s high profile sexual harassment case, Governor Hochul has been very vocal in making workplace equity a key focus of her agenda. Below are some key takeaways of the recently enacted laws and those that may be on the horizon.
Newly Enacted Laws
First, Senate Bill S812B requires that the New York State Division of Human Rights establish a toll-free, confidential hotline to provide assistance to individuals with complaints of workplace harassment. The hotline will be staffed by attorneys experienced in handling and responding to complaints of workplace harassment, who will provide pro bono counsel and assistance to those calling. The hotline must operate during regular business hours, and the Division of Human Rights must work with the New York Department of Labor to distribute information about the hotline. Employers will additionally be required to place posters in the workplace and provide employees with certain sexual harassment materials. The law is set to take effect on July 14, 2022.
Second, Senate Bill S5870 amends the New York State Human Rights Law’s definition of “retaliation” to include revealing or releasing an employee’s personnel file, or any information included in the file, in response to an employee opposing an unlawful discriminatory practice, such as filing a complaint of an unlawful discriminatory practice or assisting in an investigation or proceeding of a complaint. It provides a private right of action for individuals bringing claims for a violation of the retaliation provisions of this law. It also allows aggrieved parties to file a complaint with the state Attorney General, who then has authority to commence a legal proceeding against the employer for violating the retaliation law. Importantly, the bill includes a carve out for employers disclosing an employee’s personnel file when necessary to respond to a complaint from the New York State Division of Human Rights or to participate in legal process.
Third, Senate Bill S3395A clarifies that the definition of “employer” under the New York State Human Rights Law extends to public employers as well as private employers.
Additional Bills on the Horizon
Other bills regarding workplace harassment and discrimination have passed the Senate and are now under consideration by the Assembly, including the following:
- Extension of Statute of Limitations for Lawsuits: This bill will increase the statute of limitations from 3 years to 6 years to file a lawsuit alleging workplace discrimination or harassment.
- Extension of Time to File Administrative Charge: This bill will increase the timeframe to file an administrative charge of discrimination for any unlawful discriminatory practice with the New York State Division of Human Rights from 1 year to 3 years.
- No Re-Hire Clauses: This bill will ban “no re-hire” clauses in settlement agreements. In general, “no re-hire” clauses prevent an employee from working for the employer again in the future. They are intended to provide additional protections against future retaliation claims by the employee who was fired. The new law now precludes such “no re-hire” clauses and, even further, makes releases within agreements containing such “no re-hire” clauses unenforceable.
- No Liquidated Damages: The law makes any release of claims unenforceable if the party is required to pay liquidated damages or forfeit all or part of the consideration contemplated in the agreement, in the event of a breach of a non-disclosure provision. It likewise makes unenforceable any release of an agreement where the aggrieved party is required to make any affirmative statement that they are not subject to unlawful discrimination.
New York currently has some of the most employee-friendly protections against workplace harassment, and these additions only increase employers’ obligations to keep a safe and supported workplace environment. Because Senate Bill S812B may already require revisions or additions to company policies, now would be the time for employers to review their discrimination and harassment policies to ensure compliance with these newly enacted laws and others as well, including training mandates and commitments to a harassment free workplace. Further, if the pending bills described above are enacted, employers may also need to revise their separation and settlement agreements. Before doing this, employers should consult with counsel to ensure that your release agreements remain enforceable.
KJK’s Labor and Employment attorneys will continue to closely monitor the status of these bills. If you are an employer with offices in New York or have employees who work remotely in New York and have further questions or clarifications regarding this article, please contact Rob Gilmore (RSG@kjk.com; 216.736.7240) or Kirsten Mooney (KBM@kjk.com; 216.736.7239) .