Employment Law Alerts

July 9th, 2019

New York Readies Dramatic New Harassment Rules – What Are the Changes, and Are You Prepared to Comply?

The New York State Senate and Assembly recently passed a bill adding substantial additional protections for employees. The new law will provide additional protections for employees who allege sexual harassment; remove certain employer defenses; alter non-disclosure agreements; extend the statute of limitations for sexual harassment claims; and make changes to the laws governing sexual harassment policies and training.

Governor Cuomo is expected to sign the bill, and the various provisions will go into effect either immediately, 60 days, or 180 days after he signs. The legislature also passed three other bills related to salary history, equal pay, and hair discrimination. Most of these rules apply to New York State in general, and most will directly affect private employers. We summarize the key changes below, and provide recommendations for your next steps.

NEW YORK STATE’S NEW SEXUAL HARASSMENT LAWS

Immediately upon signing:

  • Every employer will be required to provide its sexual harassment prevention policy in both English and the employee’s primary language. This notice must be provided both at the time of hire and at every annual sexual harassment training. Training materials must also be provided to employees in English and their primary language. The bill mandates that the Labor Commissioner will provide templates in various languages; where the Commissioner does not provide templates, English language versions may be used.
  • The new provisions will require that courts interpret the New York State Human Rights Law (“NYSHRL”) liberally and narrowly construe exceptions and exemptions. Courts will now be required to construe the NYSHRL as broadly as the New York City Human Rights Law.

Commencing 60 days after signing:

  • The definition of harassment will be significantly enlarged, with the term “sexual harassment” changed to include all “unlawful discriminatory practices." This means that protections will now extend to harassment based on all protected classes as well as harassment because an individual filed a complaint, testified or assisted in any proceeding under the NYSHRL.
  • The standard of review for harassment will be lowered. The proposed amendments no longer consider whether any alleged harassment would be considered “severe or pervasive” as under prior law. Instead, liability may exist where “such harassment . . . subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership [in a protected category].” An affirmative defense would exist only where an employer can show that the alleged harassment was a “petty slight or trivial inconvenience.”
  • The proposed amendments specify that an employer can be liable for harassment even if the victim did not complain directly to the employer prior to filing suit. This change eliminates the so-called“Farragher/Ellerth” defense, which employers had used to reduce their liability. (The defense remains available under federal law.)
  • The proposed amendments expand protections to domestic workers, independent contractors, subcontractors, vendors, consultants, and other professional service providers.
  • The new law would allow courts to award punitive damages and require payment of attorneys’ fees to prevailing parties.
  • The new law provides that settlement agreements may no longer bar disclosure of information regarding the claim — unless the complainant prefers it that way. Where the complaining party prefers entering into an NDA, the new law will require the NDA drafter to write “in plain English, and, if applicable, in the primary language of the complainant. The complaining party shall have 21 days to consider the terms of the agreement before they take effect.
  • After January 1, 2020, any contract or agreement between an employer and employee or potential employee may not contain an NDA provision barring the employee from disclosing factual information related to a future claim of discrimination, unless it also provides that an employee may speak with law enforcement, the EEOC, the State or City human rights commissions, or any attorney they retain.
  • The new law will expand the ban on mandatory arbitration clauses to include all discrimination claims. At least one federal judge in New York has determined that New York’s prohibition on arbitration agreements is preempted by the Federal Arbitration Act.

Commencing 180 days after signing:

The definition of “employer” expands to include employers with any number of employees within New York State. (These laws currently apply to employers with four or more employees.)

Commencing one year after signing:

The statute of limitations for sexual harassment claims will be extended from one year to three years.

WHAT EMPLOYERS SHOULD DO NEXT

Employers should ensure that they have formulated and distributed written sexual harassment policies that are compliant with new New York State and (if applicable) New York City standards. Employers with employees for whom English is not their primary language should also ensure that policies are made available to employees in alternative language formats.

  • Employers should also ensure that they are conducting sexual harassment trainings and seminars at least annually that are compliant with New York State and (if applicable) New York City laws.
  • Regular anti-harassment training is now more important than ever. In light of the new and lower standard of proof for discrimination and harassment claims, employers should consider training all employees and particularly supervisors to be aware of all forms of disrespectful conduct at work and to understand the importance of promptly and properly addressing misconduct even in the absence of a formal employee complaint.
  • Employers should review and revise form settlement agreements, particularly those used for settlement of discrimination and/or harassment claims, to ensure compliance with the new laws.

NEW SALARY HISTORY LAWS 

If enacted, employers will not be allowed to request wage or salary history from applicants when determining whether to extend an employment offer or when determining a salary. An employer also cannot retaliate against a potential employee if the potential employee refuses to provide that information. This salary history restriction also applies to employees seeking new roles within a company.

These changes would go into effect 180 days after signing.

NEW EQUAL PAY LAWS

Equal pay laws are being expanded to require equal pay for “substantially similar work”. This reduces the previous burden of proof shouldered by the plaintiff, who originally had to prove that work was “equal.”

The proposed law would also prevent unequal pay based on an individual’s membership in any protected class.

These changes would go into effect 90 days after signing.

NEW LAWS RELATED TO RACE DISCRIMINATION BASED ON HAIR OR HAIRSTYLE

If enacted, the NY Executive and Education laws would be amended to expand the definition of “race” to include “traits that are associated with race, such as hairstyle and hair texture.” Protective hairstyles include, but are not limited to, “such hairstyles as braids, locks and twists.” Among other things, this means that employers should promptly revise any existing dress codes that include grooming or appearance to ensure that they are inclusive of the racial, ethnic, and cultural identities and practices associated with historically marginalized communities.

These changes would go into effect immediately upon signing.

If you would like to schedule a training session, update your policies, or discuss any other aspects of the new rules, please contact Wendy Stryker at (212) 705-4838 or wstryker@fkks.com, or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.