United States: Fall To Bring More Than Just Foliage For New York Employers

Last Updated: September 20 2019
Article by Cindy Schmitt Minniti, Mark S. Goldstein and Alexandra C. Manfredi

New York lawmakers had a busy summer overhauling many of the state's existing workplace laws. Many of the newly enacted changes, as well as others enacted within the past year, become effective in October 2019. Below we will highlight the new laws taking effect in October and discuss measures employers should take to ensure their workplaces are compliant.

Already in effect:

  • All New York State employers must provide new hires with a notice containing the company's sexual harassment policy. In addition, at the required annual sexual harassment prevention training sessions, employers must again furnish to all employees a notice containing the sexual harassment policy and, also, the information presented at the training.

While the law does not indicate precisely what information presented during the training must be provided, we recommend that employers provide new hires with the handouts and a copy of the presentation (presumably, PowerPoint slides) used at the training program.

Effective October 8, 2019:

  • New York employers are prohibited from discriminating against employees for "the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion."

Employers should review and update their policies on appearance, dress code, and accommodations to ensure they do not discourage or disparately impact religious garb or grooming practices.

  • New York's revised pay equity law protects members of all protected classes – not just sex – against discriminatory pay differentials.

Employers should audit their pay practices to ensure that employees performing substantially similar work are equally compensated, absent a bona fide basis for a pay differential.

October 9, 2019:

Employers should, if they have not already done so, review the state's training requirements and implement an annual training program. Employers in New York City must comply with both state and city training requirements.

Effective October 11, 2019:

  • The "severe and pervasive" standard of proof and the Faragher-Ellerth defense are eliminated under the New York State Human Rights Law ("NYSHRL").

Employers should train human resources personnel and supervisors on these changes, which lower the burden for employees to establish harassment claims. Employers should also review and update their EEO policies or training materials, as necessary, to ensure the proper legal standard for harassment is set forth therein.

  • Contractual provisions preventing employees from disclosing the underlying facts and circumstances of a discrimination, harassment, or retaliation claim – for example, in a separation or settlement agreement – are prohibited, unless confidentiality is the employee–plaintiff's preference and certain procedural requirements are satisfied.

Employers should review any template documents containing nondisclosure or confidentiality provisions and make necessary updates before October 11, 2019.

  • The NYSHRL is amended as follows: (1) nonemployees (contractors, subcontractors, vendors, consultants, or other persons providing services pursuant to a contract) are protected by the antidiscrimination provisions of the NYSHRL; (2) uncapped punitive damages and reasonable attorney's fees are available under the NYSHRL; and (3) mandatory arbitration of all NYSHRL claims is prohibited.

Employers should train supervisors and employees that nonemployees are protected under the revised law. In addition, employers should brace themselves – and their budgets – for more costly and perhaps more frequent claims. While federal law likely preempts the new law on mandatory arbitration, employers should nonetheless review any agreements or policies containing an arbitration clause for compliance.

Effective October 27, 2019:

  • The definition of retaliation under the New York Labor Law expands to include reporting or threatened reporting to immigration authorities regarding the immigration or citizenship status of the complaining employee (or their family or household member).

Employers should train supervisors on this change and ensure that reference to, or communication with, immigration authorities and related law enforcement agencies is limited to bona fide circumstances and is not retaliatory in nature.

Effective October 30, 2019:

Westchester County employers should update their employee handbooks and policies to include a policy for safe leave in accordance with this new law.

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

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