The New York state Legislature passed an omnibus bill as its legislative session drew to a close on June 19, 2019, amending the Human Rights Law, the General Obligations Law, and the Civil Practice Law. This legislation, if signed by Gov. Andrew Cuomo, seeks to expand the 2018 revisions to the state’s sexual harassment laws and will impact employers and employees.
The amendments include new employee and non-employee protections against harassment, retaliation, and discrimination in the workplace, plus will impact other categories of discrimination and harassment beyond sexual harassment.
The key provisions of the legislation have different effective dates, and employers will want to take note of these dates to ensure proper compliance.
Again, the following provisions are not effective until the governor signs the legislation.
Which employers will the NYS anti-harassment and discrimination laws apply to?
The term “employer”, under the new law, includes “all employers within the state, including all state and political subdivisions thereof.” Most existing NYS Human Rights laws apply to employers with more than four employees. The 2018 law expanded the definition of “employer” exclusively in the areas of sexual harassment, while the 2019 amendments include all employers, regardless of size. This takes effect 180 days after enactment of the law.
Which employees will the NYS anti-harassment and discrimination laws apply to?
Historically, the NY State Human Rights Law applied to private employers with four or more employees. However, in 2018, the state expanded the application of its sexual harassment laws to non-employees in the workplace. A non-employee includes a contractor, subcontractor, vendor, consultant, or anyone providing services such as equipment repair or cleaning services in a workplace or someone employed by such an individual. The new law provides non-employees in the workplace coverage under all New York state harassment laws.
What are the new requirements for NY state employers related to sexual harassment prevention?
Employers currently are required to adopt a model sexual harassment prevention policy and make the policy available to employees in writing and post it on the company website. Effective immediately upon enactment of the law, employers must provide a notice to employees containing the employer’s sexual harassment prevention policy and the information presented at the employer’s sexual harassment prevention training program — at the time of hire and at every annual sexual harassment prevention training session.
The Commissioner of the Division of Human Rights must now prepare new templates of a model sexual harassment prevention policy and the model sexual harassment prevention training program. These will be made available in English and additional languages, as deemed relevant by the commissioner. When an employee identifies as his or her primary language a language for which a template is not available from the commissioner, the employer must provide an English-language notice.
How has the burden of proof changed in New York state for harassment claims?
The current law contains the “severe and pervasive” standard that requires a claimant prove that the forms of harassment constituted a hostile work environment because they were severe and pervasive enough to alter the conditions of the individual’s employment and created an abusive working environment.
If the new law is enacted:
- It goes into effect within 60 days of enactment. The standard would be that harassment based on any protected characteristic is unlawful provided it “subjects an individual to inferior terms, conditions, or privileges of employment because of the individual’s membership in one of more” protected categories. In addition to race, color, religion, age, and disability — all protected categories under federal law — New York state law also prohibits discrimination based on sexual orientation, gender identity, lawful use of any product or lawful recreational activities when not at work, political activities, prior arrests, and more. By law, employers are provided with an affirmative defense that “that harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
- The law explicitly states that there is no implication that an employee must demonstrate the existence of an individual to whom the employee’s treatment must be compared.
- The fact that an individual did not make a harassment claim to their employer will no longer be determinative of whether an employer can be held responsible. Previously, employers could assert an affirmative defense that reasonable steps were taken to prevent and promptly correct sexual harassment in the workplace and that the aggrieved employee unreasonably failed to take advantage of the employer’s preventative or corrective measures. The 2018 law removed this defense as it related specifically to sexual harassment claims. The new law states that an employer continues to have the ability to demonstrate that appropriate policies and complaint procedures are in place, but these factors alone will not be determinative of an individual’s claim and employers still can be held responsible even if an individual fails to file a claim.
How is the NY State Human Rights Law expanded?
The following provisions of the law, if signed, go into effect 60 days after enactment and expand employee protections under the New York State Human Rights Law.
- Punitive damages now may be awarded in all employment discrimination cases against private employers. Punitive damages — monetary compensation that exceeds what is required to compensate the injured party for losses — is intended to punish the party found to have engaged in unlawful conduct. The cap on punitive damages under the new law is $10,000.
- The law states the prevailing party shall be awarded reasonable attorneys’ fees by the NYS Division of Human Rights and New York state courts. Previously, such awards were at the division’s and court’s discretion. However, a prevailing complainant/plaintiff does not have to file a motion seeking fees, whereas prevailing defendants/respondents must file a motion and show how the action brought was frivolous.
- Employers are prohibited from including non-disclosure agreements in all claims of harassment and discrimination, an enhancement from the 2018 law that prohibited inclusion of such agreements resolving claims of sexual harassment.
- As written, the law — like the 2018 expansion — extends the prohibitions on mandatory arbitration of sexual harassment claims to apply to discrimination and harassment claims generally, “except as inconsistent with federal law.” Noteworthy is a June 26, 2019, federal district court decision and order holding that the 2018 statute is preempted.
Have the statute of limitations to file claims of harassment or discrimination changed in New York?
Effective one year after enactment of the law, the statute of limitations to file a claim of sexual harassment will be three years — an extension from previous law. However, the statute of limitations to file claims of other allegations of harassment and/or discrimination remains one year after the alleged unlawful discriminatory practice.
New York state employers will need to prepare to comply with the law, if and when it is signed by Gov. Cuomo. Employers should consider reviewing their current harassment policies to ensure they are compliant. Paychex will continue to monitor this issue, and provides solutions that include dedicated HR specialists that help businesses update employee handbooks and stay up to date on regulations.
The complete omnibus legislation (S06577 / A08421)