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New Bill May Significantly Expand NY State Employment Rights

Employee Discrimination Harassment and Employer Retaliation

Employees in New York State are likely to see a major expansion of employment rights broadly relating to discrimination, harassment, and retaliation, under an expansive bill passed by the New York Legislature in June and expected to be signed by Gov. Cuomo.

Among other important changes to the state’s anti-discrimination law, the New York State Human Rights Law (“NYSHRL”), and certain related laws, the bill currently awaiting the governor’s signature would expand employees’ workplace rights in the following ways:

  • Amend the NYSHRL to cover all employers in New York State, without the current general exclusion of employers with fewer than four employees. If the bill is signed, this expansion of employer coverage will go into effect 180 days after its enactment (note: other changes under the bill will go into effect 60 days after enactment, or in certain cases such as attorney’s fees noted below, immediately).
  • Expand grounds for legally actionable harassment by eliminating the “severe or pervasive” standard used in federal law, and moving to an exception only for “petty slights or trivial inconveniences,” as the New York City Human Rights Law currently provides to employees in New York City.
  • Extend the statute of limitations for employees to file sexual harassment complaints with the state Division of Human Rights (“DHR”) to three years. Current law allows employees only one year to do so.
  • Punitive damages against private employers (on a discretionary basis), and reasonable attorney’s fees for the prevailing party in a lawsuit or DHR complaint will become available (available to prevailing employers only if the complaint is frivolous).
  • Expand current state law restricting employers’ use of confidentiality provisions in resolutions of sexual harassment claims to all discrimination, harassment, and retaliation claims. Specifically, as currently provided for sexual harassment claims, the bill will require a confidentiality provision to be the “complainant’s preference,” meaning that employees must receive 21 days to consider, followed by a 7-day period to revoke, before any such confidentiality provision can become effective.  This 21-day consideration/7-day revocation period is more protective of employees than the 21-day consideration/7-day revocation period used by employers for the waiver of federal age discrimination claims, because unlike the period under federal law for age claims, which is waivable by the employee, the state law requires the 21-day consideration period and 7-day revocation period to actually pass before an employee’s confidentiality agreement may become effective.
  • Prohibit mandatory arbitration provisions relating to discrimination, harassment, and retaliation claims. Note, however, that such a prohibition may not withstand court challenges based on recent federal court actions striking down the state’s existing prohibition of mandatory arbitration of sexual harassment claims.

Be sure to watch this space for future developments, including enactment or any modifications to the bill.

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