New York State Governor Kathy Hochul on March 16, 2022, signed three new bills into law that address workplace harassment and discrimination. These laws bolster New York State's anti-harassment and anti-discrimination laws by implementing a confidential hotline, prohibiting the retaliatory release of personnel files, and subjecting public employers to the New York State Human Rights Law (“NYSHRL”).

In addition to these new laws, New York State employers should be on the lookout for further expansions of the State's anti-discrimination laws.

State-run Confidential Hotline

Senate Bill S812B seeks to establish by July 14, 2022 a toll-free, confidential hotline for public and private sector employees to report complaints of sexual harassment in their workplaces. The hotline will be operated by the New York State Division of Human Rights ("NYSDHR") and run by pro bono attorneys who have experience providing counsel and assistance relating to sexual harassment matters.

Further, the NYSDHR will work with the New York State Department of Labor ("NYS DOL") to ensure that information related to the hotline is included in any materials employers must post or provide to their employees. Employers will also need to reference this state-run hotline in their anti-harassment policies.

This law takes effect 120 days from March 16, 2022.

Releasing Personnel Files as Retaliation is Prohibited

Effective immediately, Senate Bill S5870A amends the NYSHRL by expanding the definition of "retaliation" to include an employer's release of an employee's personnel record, or any information therein, because the employee engaged in a protected activity. Protected activities may include:

(i) bringing a claim of unlawful discriminatory practices, including harassment, in the workplace;

(ii) opposing any practices prohibited under the NYSHRL; or

(iii) testifying in or assisting any proceeding under the NYSHRL or any other judicial or administrative proceeding.

Under this law, employers are prohibited from releasing personnel records as a way to discredit employees with claims of workplace harassment or discrimination.

The law further provides that individuals can bring a private right of action in court and the Attorney General may commence an action or proceeding in the Supreme Court of the State of New York if there is evidence to suggest that the employer has been violating, or is about to violate, the NYSHRL provisions regarding unlawful discriminatory retaliation.

This law took effect immediately upon signing.

State and Public Employers Subject to Human Rights Law

Finally, 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 further clarifies that the NYSHRL protections extend to New York employees or officials, including elected officials, of the executive, legislature, or judiciary, including persons serving in any judicial capacity, and persons serving on the staff of any elected official.

This law took effect immediately upon signing.

Takeaways For New York Employers

• Employers should plan to revise their handbook policies, anti-harassment trainings, and postings, as well as any materials they distribute to employees concerning sexual harassment, to include New York State’s anonymous hotline information, once available.

• Employers should consider revising any policies on non-retaliation to include the expanded definition of prohibited retaliatory actions. This should include a policy that governs access to and disclosure of employee information and personnel files.

• New York employers must proceed with caution when considering whether to release an employee's personnel file or information contained in the employee's personnel file, particularly when responding to an employee's claim.

• Employers should provide updated training and counseling to managers and supervisors in connection with these updated laws.

Additional Protections In The Legislative Pipeline

Aside from the three bills that Governor Hochul recently signed, there are several bills pending with the State Legislature that would have a further impact on harassment and discrimination claims under New York State law. These bills have been passed by the Senate and are under review by the Assembly.

Possible Extension of the Statute of Limitations For Discrimination Claims

There are two bills that seek to extend the statute of limitations to bring discrimination claims. First, Senate Bill S566A would expand the statute of limitations for discrimination claims filed with the NYSDHR. Currently, claimants have one year to file most employment discrimination claims, but three years to file sexual harassment claims. SB S566A would extend the year statute of limitation for discrimination claims to three years, in line with the filing period imposed for sexual harassment claims.

This bill would become effective 90 days after being signed.

Similarly, Senate Bill S849A seeks to amend the New York Civil Practice Law and Rules ("CPLR") to extend the statute of limitations from three years to six years for civil claims alleging discrimination.

This bill would become effective 60 days after being signed.

Potential Limits to the Terms of Settlement Agreements or Releases of Claims

There are also two bills that seek to impose certain limitations on the language and clauses that may be included in settlement agreements or releases of claims for sexual harassment or discrimination.

The first is Senate Bill S738. This bill would clarify the New York General Obligations Law, which places limitations on employment-related settlement agreements, and confirms that it applies to the settlement of discrimination claims brought by independent contractors (as well as employees and potential employees).

The proposed legislation would render unenforceable any release of a claim of discrimination, harassment, or retaliation if the release is included in a settlement agreement that requires the complainant to:

(i) pay liquidated damages in the event the complainant violates a nondisclosure or non-disparagement clause;

(ii) forfeit all or part of the consideration received under the agreement if the complainant violates a nondisclosure or non-disparagement clause; or

(iii) make a statement, assertion, or disclaimer that the complainant was not subject to unlawful discrimination or retaliation.

SB S738 would also require employers to notify employees that nothing precludes them from speaking with the New York Attorney General, as well as law enforcement, the EEOC, the state or local commission of human rights, or an attorney.

Further, this bill would amend Section 5-336 of the New York General Obligations Law. This section currently requires that all nondisclosure agreements or confidentiality clauses relating to the settlement of discrimination claims be subject to a full twenty-one day consideration period before such provision is memorialized in an agreement. If enacted, complainants would have "up to twenty-one days" to consider the inclusion of a nondisclosure or confidentiality clause but may voluntarily agree to the provision before the twenty-one-day waiting period has elapsed. The bill would also make clear that the twenty-one day period to consider a nondisclosure clause also applies to the settlement of harassment or retaliation claims.

If signed, SB S738 would become effective upon enactment.

The second bill, Senate Bill S766, seeks to add a new section to the General Obligations Law that would render the release of claims in all separation agreements between an employer and any public or private employee and/or independent contractor unenforceable if the agreement contains a no-rehire clause. Specifically, employers are permitted to terminate the existing employment or independent contractor relationship but cannot prevent an employee or independent contractor from applying for, accepting, or engaging in future employment with the employer or its related entities.

Notably, even if the release of claims is rendered unenforceable by the inclusion of a no-rehire provision, the employer would remain bound by all other provisions of the agreement (e.g., the obligation to pay any agreed-upon settlement payment or consideration promised to the employee).

SB S766 would take effect 60 days after being signed.

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New York employers should continue to monitor the status of these legislative developments as they may have a significant impact on the settlement of harassment, discrimination, and retaliation claims brought by employees.