Update: On March 16, 2022, Governor Kathy Hochul signed into law three of the bills discussed below, further protecting victims of unlawful discriminatory practices from unlawful retaliation, creating a workplace sexual harassment hotline, and extending the Human Rights Law to all public employees.
Seyfarth Synopsis: The New York legislature has passed or is close to passing a series of bills designed to protect public and private employees from sexual harassment and retaliation. The bills include a ban on no-rehire clauses in settlement agreements and an extension of the limitations period for claims of workplace harassment and discrimination.
The New York legislature is actively considering, or has recently passed, a number of bills that provide increased protection to victims of workplace sexual harassment and discrimination. The bills, if they become law, would have far-reaching implications for Empire State employers defending against harassment and discrimination claims.
The suite of potential legislation includes the following:
- Prohibition of No-Rehire Clauses: The Senate has passed a bill that, once passed by the Assembly and signed by Governor Kathy Hochul, would ban no-rehire clauses in settlement agreements. The bill renders unenforceable the release of any claim, by an employee or independent contractor, if the release is conditioned upon a promise not to apply for, accept, or engage in any future employment with the employer or related entities. In the event that such a clause is rendered unenforceable under this law, the remainder of the settlement agreement would still be binding. The bill would take effect 60 days after becoming law and would apply to agreements entered into on that day and onward.
- Protection from Unlawful Retaliation: A bill that has passed both chambers of the legislature and is awaiting the Governor's signature would prohibit employers from releasing an employee's personnel file in retaliation for the employee's complaints about the employer's unlawful discriminatory practices or the employee's assistance in proceedings involving such practices. The bill does not prohibit the release of such an employee's personnel file in a legal proceeding (whether administrative or judicial) as part of the employer's commencement of or response to a complaint. Governor Hochul signed this bill on March 16, 2022. It took effect immediately.
- The Let Survivors Speak Act: This bill reforms current nondisclosure laws by prohibiting settlement agreements involving claims of sexual harassment or other forms of unlawful discrimination from including any condition that requires the complainant to pay the defendant liquidated damages or to forfeit consideration for the agreement if the complainant breaches a nondisclosure or nondisparagement clause in the agreement. The bill further prohibits settlement agreements from containing or requiring any admission from the complainant that he or she was not, in fact, subject to unlawful discrimination. The bill has passed the Senate but not the Assembly. If and when it is enacted, it will take effect immediately upon the Governor's signature and will apply to agreements entered into on that day and onward.
- Extension of Limitations Period for Administrative Charges: This bill extends to three years the statute of limitations for administrative charges alleging unlawful discriminatory practices filed with the State Division of Human Rights. Currently, the limitations period for such charges is one year. This bill has passed the Senate and is awaiting action by the Assembly.
- Extension of Limitations Period for Lawsuits: This bill extends to six years the limitations period for employment discrimination lawsuits under the Human Rights Law. The current limitations period is three years. This bill has passed the Senate and is awaiting passage by the Assembly.
- Creation of Workplace Sexual Harassment Hotline: This bill creates a toll-free confidential hotline to assist individuals with complaints of workplace sexual harassment. It has passed both the Senate and Assembly but has yet to be delivered to Governor Hochul. Governor Hochul signed this bill on March 16, 2022. It takes effect on July 14, 2022, 120 days after it became law.
- Extension of Human Rights Law to All Public Employees: This bill clarifies that the Human Rights Law applies to all public employees, including elected officials' and judges' personal staff. The bill has passed both the Senate and Assembly but has yet to be delivered to Governor Hochul. Governor Hochul signed this bill on March 16, 2022. It took effect immediately.
Taken as a whole, the bills would further cement New York's standing as one of the most employee-protective states in the nation. In particular, the six-year limitations period for court claims of discrimination and harassment could have a profound effect on litigation under the Human Rights Law, doubling the time in which claimants can file lawsuits to seek relief. But the tripling of the limitations period for State Division of Human Rights complaints, from one year to three, may make discrimination/harassment claimants more likely to pursue remedies in that forum rather than court.
The other enactments would have more modest, but still significant, implications. No-rehire clauses are a common feature of settlement agreements, but their prohibition is not likely to change the calculus for parties deciding whether to settle claims except in extreme cases.
All told, the suite of new laws makes abundantly clear, if there was ever any doubt, that employers should remain diligent about preventing claims from arising in the first place, through training and responsive human resources practices, and acting promptly to address employee concerns internally when they arise.
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