New York Employment Law Update: Governor Cuomo Signs Legislation Enacting Expansion of New York’s Harassment Laws

August 2019

As previously reported, earlier this summer the New York State Legislature passed a number of sweeping reforms that built upon and expanded New York’s sexual harassment laws, and that the new legislation was awaiting Governor Cuomo’s signature. Earlier this week, Governor Cuomo signed S.6577/A.8421 and enacted what the Governor’s office has termed “Sweeping New Workplace Harassment Protections.” Below is a quick snapshot of the effective dates for the new laws.

Effective Immediately

As of August 12, 2019, the following requirements will be effective:

  1. Attorney’s fee awards under the NYSHRL are now mandatory, and not discretionary;
  2. The NYSHRL is to be construed liberally and exceptions to the law construed narrowly in order to “maximize deterrence of discriminatory conduct”; and
  3. Employers must now provide employees with a notice, at the time of hire and during the employer’s annual sexual harassment training, containing the employer’s sexual harassment prevention policy and information presented at the employer’s sexual harassment prevention training in English and the employee’s “primary language.” Note that employers not required to provide their policy in another language if the state has not published a template in that language.

Effective October 11, 2019

A bulk of the new requirements will go into effect on October 11, 2019. Specifically: employers should take note of the following requirements effective as of October 11, 2019:

  1. The “severe and pervasive” standard for harassment claims will be replaced by the requirement that harassment rise above the level of “petty slights and trivial inconveniences”;
  2. The Faragher-Ellerth defense will no longer be available for claims under the NYSHRL;
  3. Employees will no longer need to show they were treated less favorably than a comparator;
  4. Employers may be liable for claims of harassment or discrimination of any kind against any non-employee performing services in the workplace;
  5. Mandatory arbitration provisions for discrimination and retaliation claims will be prohibited;
  6. Punitive damages will be available under the NYSHRL; and
  7. Non-disclosure agreements for all claims of harassment or discrimination may only be confidential if it is the complainant’s preference.

Effective January 1, 2020

Starting on January 1, 2020, employment agreements that include confidentiality provisions must include a carveout permitting the employee to speak with “law enforcement, the Equal Employment Opportunity Commission, the state Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.”

Effective February 8, 2020

Starting on February 8, 2020, the NYSHRL will apply to employers of all sizes, and not just employers with four or more employees. Note, however, that this change will go into effect on October 11, 2019 for domestic workers, who will now be afforded the same protections as all other types of employees.

Effective August 12, 2020

As of August 12, 2020, employees will have three (3) years to file a claim of sexual harassment with the New York State Division of Human Rights.

For more information on this issue or other employment matters, please contact:

Carol Goodman at [email protected] or +1 212 592 1465

© 2019 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.