The New York (NY) legislature has passed and proposed legislation that would further expand harassment and discrimination protections for employees in NY. The legislation is intended to ensure that all public and private employees are treated in a fair manner and have the necessary resources available to seek accountability from their employers. Some of items in the legislative package have been made effective with Governor Hochul’s signature, while others are still moving through the NY Legislature. Below is a list of passed and proposed legislation and the current status of the legislation.
| Passed Legislation | Proposed Legislation |
|---|---|
| Clarification of the Definition of “Employer” under NY Human Rights Law (NYHRL) to Include Public Employers S.3395A amends the definition of “employer” under the New York’s Human Rights Law (NYHRL) to explicitly include the state and all public employers as employers for purposes of NYHRL. This change is intended to clarify that both private and public employers are subject to the NYHRL. The legislation also closes the “personal staff loophole” by clarifying that the law also applies to the direct employer of elected and appointed officials and their staff, in addition to, localities. The bill was signed into law on March 16, 2022, and took effect immediately. | Extension of the Statute of Limitations for Employment Discrimination under NY Civil Practice Law S.849A would amend Section 213 of the Civil Practice law and rules to extend the statute of limitations statute of limitations for actions based upon an unlawful discriminatory practice in employment from three years to six years. The bill was passed by the Senate on March 1, 2022, and has been delivered to the Assembly. If passed by the Assembly, and signed by the governor, this legislation will take effect 60 days from the date of the governor’s signature. |
| Release of Personnel File as Retaliation is Prohibited S.5870 amends the NYHRL to clarify that release of personnel records to discount victims of workplace discrimination is considered a retaliatory action under the NYHRL. The legislation also provides additional recourse to victims of retaliation by allowing them to file a complaint with the Attorney General, who may then commence an action in state Supreme Court if the employer is found to be in violation of Section 296(7) of the NYHRL. Employers would still be permitted to release personnel records in cases where the release is necessary to respond to a complaint, civil or criminal action, or judicial or administrative proceeding. The bill was signed into law on March 16, 2022, and took effect immediately. | Extended Statute of Limitation under NY Human Rights Law for Non-Sexual Harassment Related Discriminatory Practices The proposed legislation (S.566A) would extend the statute of limitation from one year to three years and the time to file in court from three years to six years following the alleged discriminatory practices. This would align with the current statute of limitation for alleged conduct that constitutes sexual harassment. The bill has passed in the Senate but not the Assembly. If it passes in the Assembly, and signed by the governor, it will become effective 90 days from the date of the governor’s signature. |
| Establishment of a Toll-Free Confidential Hotline for Complainants of Workplace Sexual Harassment S.812A amends Section 295 of the NYHRL to establish a toll-free confidential hotline for complainants of workplace sexual harassment to be administered by the Division of Human Rights (DHR). The hotline will be worked by experienced attorneys acting in a pro-bono capacity who will provide counsel and assistance to complainants. The legislation provides that the hotline is to be accessible, at a minimum, Monday through Friday during the “regular business hours” of 9 a.m. to 5 p.m. The DHR will work with organizations representing attorneys, including but not limited to the New York State Bar Association to recruit attorneys. To eliminate any conflict of interest, the attorneys working the hotline may not solicit, or permit employees or agents of the attorneys to solicit on the attorney’s behalf, further representation of any individuals they advise through the hotline. This legislation will take effect on July 14, 2002. | Ban on No-Rehire Provisions in Settlement Agreements S.766 would amend New York General Obligations Law to ban “no rehire” clauses in settlement agreements for employees or independent contractors that have filed a claim against their employer. The legislation will make settlement agreements unenforceable if they contain a no-rehire clause. The legislation would not, however, prohibit any termination of employment mutually agreed upon as part of a settlement, nor would it automatically force a defendant employer to rehire an employee who had previously settled a case against the employer. This bill was passed by the Senate on March 1, 2022, and has been delivered to the Assembly. If passed by the Assembly, and signed by the governor, this legislation will take effect 60 days from the date of the governor’s signature. |
| Let Survivors Speak Act S.738 would amend New York General Obligations Law to prohibit liquidated damages provisions in confidential settlements of harassment and discrimination claims. This legislation will protect survivors from facing financial sanction for sharing their experiences of harassment and discrimination. The bill bars settlements of harassment and discrimination claims from including any terms or conditions requiring a plaintiff to pay liquidated damages for violating a non-disclosure agreement (NDA). Additionally, agreements may not require the complainant to forfeit part or all of the consideration for violating the non-disclosure provisions, and they cannot be required to sign an affirmative statement, assertion, or disclaimer stating that they were not subject to discrimination or retaliation. This bill was passed by the Senate on March 1, 2022, and has been delivered to the Assembly. If passed by the Assembly, and signed by the governor, this legislation will take effect immediately upon the governor’s signature. |
Next Steps for Employers
In light of all the above referenced changes reflected in this legislative package, including the potential for longer statute of limitations to bring claims of workplace harassment and discrimination before the DHR and in State Supreme Court, employers may see an increase in the number of complaints regarding sexual harassment and discrimination in the workplace.
Employers should monitor this legislative package, including any additional guidance or policy changes that may be put forth by the state. Further, the DHR will work with the DOL to ensure that information related to the confidential hotline is included in any materials employers must post or provide to their employees. Employers will also need to reference this hotline in their non-harassment policies.
Employers should also continue to ensure that annual training is provided for all employees (including supervisors/managers) on non-harassment and non-discrimination to reduce claims of harassment, discrimination or retaliation in the workplace. Further, employers should always consult with legal counsel for review and drafting of settlement agreements.
HR Works will continue to monitor the status of the proposed bills and any additional guidance that is released on the passed legislation and provide updated information as needed.
