Dramatic changes in New York’s sexual harassment laws are effective now, or will go into effect shortly. New York employers will have to adapt and take some important steps to comply. Here’s a summary of what all New York employers need to know.
Effective October 11, 2019
- Harassment can be based on any protected category. The Human Rights Law will now apply to harassment based on any protected class, including age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or (effective November 18, 2019): domestic violence victim status.
- Discrimination protections now extend to all workers in the workplace, including non-employees. New York’s anti-discrimination laws now extend to contractors, subcontractors, vendors, consultants, and any others providing services in the workplace.
- Harassment claims are subject to a lower standard. A complainant no longer needs to show that the harassment is severe or pervasive (although an employer may raise a defense that the actions were no more than “petty slights or trivial inconveniences”). Nor does a complainant need to identify a similarly situated person or employee that was treated more favorably. Also, the defense that an employee did not first file an internal complaint with their employer will no longer be a complete defense.
- Harassment penalties are now harsher. Punitive damages can now be awarded against all private employers, and attorney’s fees may be awarded in all employment cases.
- Settlement agreements must change.
- Confidentiality provisions must be the complainant’s preference and must be "in plain English.” Employers may not include in any settlement, agreement or other resolution of a discrimination claim, any term or condition which would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant’s preference. To demonstrate that the complainant prefers a confidentiality clause, the clause must be provided to the complainant in writing, in plain English (and, if applicable, in the complainant’s primary language).
- Two-phase consideration process and secondary agreement. A complainant must receive at least 21 days to consider the confidentiality clause. Once the 21-day consideration period has ended, the complainant’s preference for a confidentiality clause must be memorialized in a secondary agreement signed by all parties. Thereafter, the complainant must receive an additional 7 days to revoke the agreement before the agreement becomes enforceable. Neither of these waiting periods can be waived.
Effective January 1, 2020
- Employment agreements must change. Any agreement between an employer and employee or potential employee preventing the disclosure of factual information related to any future claim of discrimination, will become void and unenforceable unless it notifies the complainant that they are not prohibited from discussing the facts underlying their discrimination claim with law enforcement, the Equal Employment Opportunity Commission (EEOC), the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.
Effective February 8, 2020
- The Human Rights Law will extend to all employers. The Human Rights Law currently applies to employers with five or more employees. In February, it will extend to all employers.
Effective August 12, 2020
- Longer statute of limitations for sexual harassment cases related to employment. Claimants currently have one year to file sexual harassment cases with the New York Human Rights Division. Starting next August, they will have up to three years to file sexual harassment charges in employment cases only.
Consider these steps to adapt to the changes in harassment law:
- Use a two-step process for executing discrimination settlement agreements with confidentiality provisions. If you wish to include a confidentiality provision in an agreement resolving a discrimination claim, you must do two things: first, include a provision in plain English stating that confidentiality is the complainant’s preference; and second, allow expiration of the complainant’s 21-day review plus 7-day revocation period thereafter before entering into the settlement agreement itself. Remember that the 21-day review and 7-day revocation periods cannot be waived or shortened.
- Expect longer waits for settlement payments. Because payments should not be made until after the consideration and revocation periods have expired, parties can expect to wait longer for payment.
- Revise your confidentiality provisions. Courts are likely to construe general confidentiality provisions as prohibiting disclosure of information related to potential discrimination claims. Thus, New York employers should revise their employment agreements, employee NDAs, crew-deal memoranda or other employment-related agreements to include carve-out language specifying that (potential) workers are not prohibited from discussing the factual information related to any future discrimination claim with law enforcement, the EEOC, the state Division of Human Rights, the local commission on human rights, or an attorney they have retained.
- If you have at least one employee, get familiar with your duties and obligations under the Human Rights Law. In February 2020, all employers will be subject to the Human Rights Law, regardless of number of employees. Take time to familiarize yourself with its protections and learn your responsibilities so you can stay in compliance.
Wendy Stryker is Counsel to the Employment and Litigation Groups at Frankfurt Kurnit. Ms. Stryker also effectively plays the role of outside general counsel. She advises on a wide variety of employment issues as they arise, including discrimination and harassment, employee classification, wage and hour, employee discipline, employee use of social media, background checks, interview questions, and requests for disability accommodations. A frequent public speaker, Ms. Stryker presented “Employment Law Issues in the Virtual Workplace” at the 2017 national South-by-Southwest conference.
This column presents a general discussion of legal issues, but is not legal advice and may not be applicable in all situations. Consult your attorney. To contact Wendy Stryker ESQ via email click here.
