In March 2022, New York Governor Kathy Hochul signed three new bills into law that bolster New York State's anti-harassment and anti-discrimination laws. These three enacted laws address (i) the release of employee personnel files in retaliation for engaging in protected activity, (ii) the establishment of a state-run sexual harassment hotline, and (iii) the exposure of public employers to the New York State Human Rights Law (NYSHRL). Employers should also keep an eye on four bills that are in the legislative pipeline, as they will further impact employers' legal obligations under New York State's anti-harassment and anti-discrimination laws.
Newly Enacted Laws
Prohibition of Retaliatory Release of Personnel Files
Effective immediately, Senate Bill S5870 amends the NYSHRL by expanding the definition of "retaliation" to include an employer disclosing an employee's personnel files because the employee has (1) brought a claim of unlawful discriminatory practices, including harassment in the workplace; (2) opposed any practices forbidden under the NYSRHL; or (3) filed a complaint, testified, or assisted in any proceeding under the NYSHR, or any other judicial or administrative proceeding. Employers are also prohibited from releasing employee personnel records as a way to discredit employee claims of workplace harassment or discrimination. Individuals have a private right of action for these claims, and the attorney general may commence an action or proceeding in the Supreme Court of the State of New York if there is evidence that an employer has been, is, or is about to be in violation of the provisions regarding unlawful discriminatory retaliation. Importantly, the law expressly permits employers to disclose personnel files in the course of commencing or responding to a complaint in any judicial or administrative proceeding.
State-Run Workplace Sexual Harassment Hotline
On July 14, 2022, Senate Bill A.2035B will take effect and establish a statewide toll-free confidential hotline that will provide counsel and assistance to individuals with concerns about workplace sexual harassment. The State Division of Human Rights working with the State Department of Labor will utilize pro bono attorneys experienced in providing sexual harassment-related counseling, to assist those who call. Notably, the hotline is limited to claims of alleged sexual harassment; it does not provide a resource for employees who experience alleged discrimination based on any other protected characteristic, such as race, age, national origin, religion, or immigration status. The law is unclear as to how the state will implement procedures to assess the veracity of the claims made, and this will likely be a concern down the road. Regardless, employers are required to include the hotline number in any sexual harassment postings and policies starting on July 14, 2022.
State and Public Employers Subject to the New York State Human Rights Law
Effective immediately, Senate Bill S3395A expands the definition of the term "employer" under the NYSHRL to include public employers, particularly the State of New York, and its cities, counties, towns, villages, and other political subdivisions. The bill also clarifies that the NYSHRL will extend to New York State employees, including elected officials, those serving in any judicial capacity, and persons serving as staff to any of those officials.
Pending Bills
As mentioned above, there are four potential bills in the legislative pipeline that would increase the statute of limitations for filing claims of sexual misconduct and limit certain clauses from being included in settlement agreements or releases of claims. These bills have all passed the Senate and are now under consideration by the Assembly.
Potential Expansion of Statute of Limitations for Discrimination Claims
Senate Bill S566A is seeking to expand the NYSHRL statute of limitations for filing discrimination claims with the New York State Department of Human Rights (NYSDHR). Currently, the law provides a one-year statute of limitations for filing most employment discrimination claims and allows three years to file sexual harassment claims. The amendment would allow up to three years to file any discrimination claim with the NYSDHR.
Senate Bill S849A would amend the New York Civil Practice Law and Rules (CPLR) to extend the statute of limitations for filing a civil lawsuit for unlawful discrimination from three years to six years.
Potential Limits on Settlement Agreements or Releases of Claims
Senate Bill S738 seeks to clarify the New York General Obligations Law, which places limits on employment-related settlement agreements. The law would first clarify that it includes settlement agreements resulting from discrimination claims brought by independent contractors. The law would also add new provisions that would render unenforceable any release of claim of discrimination, harassment, or retaliation if the release is included in a settlement agreement that requires the complainant to (i) pay liquidated damages; (ii) forfeit all or part of the consideration received for a violation of the nondisclosure or nondisparagement clause or; (iii) make any affirmative statement that they were not in fact subject to unlawful discrimination.
SB738 would also require employers to notify employees that nothing in the release or agreement precludes them from speaking with the New York attorney general, law enforcement, the EEOC, the state or local commission of human rights, or an attorney.
This bill would also amend Section 5-336 of the New York General Obligations Law, which currently requires that all nondisclosure agreements or confidentiality clauses relating to the settlement of discrimination claims provide a full 21-day consideration period before such provision is memorialized in an agreement. If enacted, the bill would allow complainants to consider the inclusion of a nondisclosure or confidentiality clause before the 21-day waiting period has elapsed and enter into an agreement before the 21-day expiration.
Senate Bill S766 seeks to prohibit no-rehire clauses in settlement agreements. No-rehire clauses typically protect employers from retaliation claims in the event a plaintiff agrees to a settlement, reapplies for a job with the employer, and then sues the company again when they are not hired. If the bill is passed and a release agreement does contain a no-rehire clause, the release of claims will not be enforceable, but the employer will still be bound by all other provisions of the settlement agreement, including the obligation to pay an agreed-upon settlement amount. The bill does not, however, (i) prohibit termination of the employee if mutually agreed upon as part of a settlement or (ii) automatically require an employer to rehire an employee who had previously settled a case against the employer.
What Should Employers Do Now?
In response to SB 5870, employers should first inform their human resources personnel and supervisors about the potential legal ramifications of disclosing an employee's personnel file. And starting on July 14, 2022, employers should also update all future sexual harassment postings and policies to include the hotline number in response to SB A.2035B. Last, employers should diligently take measures to ensure their workplaces are free from discrimination and harassment, as it is evident New York State will continue to lead the country with some of the most protective laws against workplace harassment and discrimination. If these pending laws are enacted, employers may need to revise their standard separation and settlement agreements.
The authors of this article and other members of Venable's Labor and Employment Group are monitoring for further developments and are available to speak should any questions arise.