The New York State Legislature has passed new legislation expanding the State's anti-discrimination and anti-harassment laws, which Governor Cuomo is expected to sign imminently. These new laws further broaden employees' protections against harassment and discrimination in the workplace and place new requirements on all employers in New York State as summarized below. Most of the new legislation mirrors laws already in effect in New York City so New York City employers will not be impacted as significantly as employers outside of the City.

Application of the New York State Human Rights Law to All Employers

As amended by the new legislation, the New York State Human Rights Law will cover employers of all sizes, not just employers with four or more employees, effective 180 days after the new laws are enacted.

Distribution of Anti-Harassment Policies

Effective immediately upon enactment of the new laws, New York State employers will be required to provide employees at the time of hire and at every annual sexual harassment prevention training with a notice containing the employer's sexual harassment policy and the information presented at the employer's sexual harassment prevention training program. Moreover, the New York State Human Rights Law will be construed liberally, even when such construction would diverge from that of federal civil rights laws, in order to maximize deterrence of discriminatory conduct.

Expansion of Protections to Non-Employees and Lower Burden of Proof

Effective 60 days after enactment of the new laws, the protections provided by the New York State Human Rights Law will apply to domestic workers and non-employees, including contractors, subcontractors, vendors, consultants, and persons who are providing services pursuant to a contract in the workplace (collectively, "Non-Employees"), and individuals who are employed by Non-Employees. The burden of proof under the New York State Human Rights Law will also be lowered so that employees asserting a claim for harassment thereunder will no longer have to show that the alleged harassment was severe or pervasive; nor will employees have to show that they were treated less favorably than a comparator (i.e., a similarly situated individual outside of the protected category). Mirroring the New York City Human Rights law, New York State law will now require that employees just show that they were treated less well than other employees because of their protected status and that the alleged harassment rises above the level of petty slights and trivial inconveniences.

Punitive Damages and Attorneys' Fees

Similarly, New York State law will follow New York City law in making punitive damages available as a remedy for employees and preventing employers from using the fact that an employee did not utilize the employer's internal complaint or reporting procedure as a defense to the employee's claim of harassment. Even though an employee's failure to take advantage of an employer's reporting procedure is not a defense to a harassment claim, employers can use that failure to mitigate the amount of damages recoverable under New York City law. Furthermore, employees who bring claims against their employers under the New York State Human Rights Law and prevail will be entitled to attorneys' fees, which is a remedy already available under the New York City Human Rights Law. Prevailing employers, on the other hand, will only be awarded attorneys' fees if they show that the action brought by the employee was frivolous. These changes will take effect 60 days after enactment of the new laws.

Mandatory Arbitration Prohibited

While New York State enacted legislation last year which prohibits mandatory arbitration of sexual harassment claims, this prohibition will be expanded to all claims of discrimination based on a protected characteristic (such as race, religion, disability, etc.) effective 60 days after enactment of the new laws. However, this prohibition is likely to be challenged as being preempted by federal law. Indeed, a federal judge in New York City recently held that an agreement to arbitrate sexual harassment claims is enforceable under the Federal Arbitration Act despite New York law prohibiting mandatory arbitration agreements covering sexual harassment claims.1

Limitations Regarding Nondisclosure Agreements

Similarly, New York State also previously limited the use of nondisclosure agreements or provisions ("NDAs") in cases involving sexual harassment, and pursuant to the new laws, employers will be prohibited from including NDAs in any settlement of a claim involving any type of discrimination unless the condition of confidentiality is the employee's preference. If confidentiality is the complainant's preference, then an NDA regarding the claim must be written in plain English and, if applicable, in the primary language of the complainant. The complainant then must have 21 days to consider the NDA before signing the document, and a waiting period of at least seven days during which the employee may revoke their agreement to the NDA after they sign. This requirement goes into effect 60 days after enactment of the new laws.

Furthermore, beginning January 1, 2020, NDAs that are part of an employment contract and that prevent an employee from disclosing information related to any future claim of discrimination must include an explicit carve-out providing that the employee is not prohibited from speaking with law enforcement, the Equal Employment Opportunity Commission, the New York State Division of Human Rights, a local commission on human rights, or an attorney retained by the employee.

Statute of Limitations for Sexual Harassment Claims

Effective one year after the new laws are enacted, the statute of limitations for employees to bring a claim of sexual harassment under State law before the New York State Division of Human Rights will be three years.

Recommendations

To ensure compliance with these new laws, New York employers should review and revise their employee manuals and their standard employment, separation, and settlement agreements, including any arbitration or nondisclosure provisions therein. Please feel free to reach out to Pryor Cashman with any questions or for guidance.

1 Latif v. Morgan Stanley & Co., LLC, No. 18 CV 11528 (DLC), 2019 WL 2610985 (S.D.N.Y. June 26, 2019).

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