United States: New York Lawmakers Upend The Employment Law Landscape…Again (Part 5)

Today is the last in a five-part blog series on New York's sweeping changes to the legal landscape for Empire State employers. In prior posts, we covered limitations on the use of nondisclosure provisions in settlement and separation agreements, the new standards for litigating and defending harassment claims, expanded equal pay protections, and the statewide ban on salary history inquiries. Today, we will explore the remaining changes to the state's anti-discrimination laws. All of the changes discussed in this article will take effect 60 days after Governor Cuomo signs the Bill, unless otherwise noted:

Expanding Protections to More Employers and More Workers

All New York employers will now be subject to the state's anti-discrimination law, regardless of size. Under the prior incarnation of the law, employers with fewer than four employees were excluded from coverage (except for sexual harassment claims). Now, every single employee and employer in New York will be covered by these protections. This change will take place 180 days after enactment.

In addition, non-employees – such as independent contractors, vendors, and consultants (and their employees) – will now be entitled to the protections afforded by the state's anti-discrimination law. This expands on a 2018 law that afforded such protections to non-employees asserting claims of sexual harassment. In addition, the law will also now protect domestic workers from all forms of harassment.

Increased Damages

The law also makes two important changes to the availability of damages in employment litigation cases. First, plaintiff-employees who prevail on state law discrimination, harassment, and/or retaliation claims will be able to recover uncapped punitive damages. Previously, punitive damages were only available pursuant to state law for housing, but not employment discrimination claims. Second, prevailing employees will also automatically be awarded attorneys' fees incurred during the lawsuit. This provision takes effect immediately upon enactment.

These two changes mirror existing law in New York City, which already provides for uncapped punitive damages and attorneys' fees for successful discrimination, harassment, and retaliation claims.

Annual Notification Requirements

In accordance with a 2018 New York law, all statewide employers must provide annual sexual harassment prevention training to their employees, and must also maintain a written sexual harassment prevention policy. Under the 2019 Bill, employers must disseminate a notice containing the employer's sexual harassment policy to all new hires. Additionally, employers must provide all employees with a copy of the information presented at any sexual harassment prevention training session. These materials must be provided in both English and the employee's primary language, at the time of hire and each year at the time of training. This change goes into effect immediately upon the law's enactment.

Ban on Mandatory Arbitration Agreements

In 2018, New York barred the use of mandatory arbitration agreements for sexual harassment claims. The new law now prohibits mandatory arbitration for any form of unlawful discrimination or harassment claims. As discussed in our prior blogs, however, this ban is likely preempted by federal law.

Increased Statute of Limitations for Sexual Harassment Claims

The statute of limitations for sexual harassment claims filed with the New York State Division of Human Rights will be increased from one year to three years. This change takes effect one year after enactment of the law. This change will likely have minimal impact on the litigation of such claims, as there is already a three-year statute of limitations for an employee to bring a civil action and there is no requirement that the claim first be brought before the Division of Human Rights. However, employees seeking to pursue their sexual harassment claims at a lower cost, whether pro se or via counsel without incurring filing and service fees, may take advantage of the expanded timeframe in which they may file with the New York State Division of Human Rights.

These are only some the most recent additions to New York's ever-changing employment landscape. Employers should consider speaking with an experienced employment attorney about how these changes may affect your policies or practices.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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