By Frank J. Fanshawe, Principal, and Ashley Solowan, Associate
In 2019, New York State enacted sweeping legislation to further combat discrimination and harassment of all kinds in the workplace. The legislation follows and builds upon other major state legislation in 2018 addressing sexual harassment.
Below are some highlights of the 2019 measure, together with the 2018 mandate for sexual harassment prevention training for all employees.
With the 2018 legislation, employers of all sizes are required – for both full- and part-time workers in New York State – to provide sexual harassment prevention training by October 9, 2019, as soon as possible after a new employee’s start date, and at least annually thereafter. The state Department of Labor’s website has a description of the minimum training requirements and materials (https://www.labor.ny.gov/immigrants/sexual-harassment-prevention.shtm).
It’s worth noting that some employers provided initial mandated training many months – and, even, more than a year – prior to the October 9, 2019 deadline and are uncertain if their training within that timeframe would meet the initial training requirements. The answer is not entirely clear, given the crossover of calendar years in the span between the implementation date (in 2018) and the training due date (in 2019). But based on the state’s guidance, it appears that such employers could make a strong case for compliance with the October 9 deadline if: 1) the employer trained staff under the minimum standards (or greater) in 2018, and 2) if the employer then also provided its first annual training at some point in 2019 – even if the annual training takes place in November or December 2019.
The 2019 measure additionally requires employers to provide their New York employees with a notice, both at hire and during the training, containing the “employer’s sexual harassment prevention policy and the information presented at such employee’s sexual harassment prevention training program.” This notice must be in both English and in an employee’s primary language, provided that DOL has published materials in that language.
The 2019 legislation includes many other significant changes. Except where indicated, these changes go into effect for claims on October 11, 2019 and after.
- The state’s Human Rights Law will apply to employers of every size beginning on February 8, 2020 for claims that occur on and after that date. The current law applies to employers with four or more employees (except in cases of sexual harassment, where the current law already applies to all employers).
- Human Rights Law claims will no longer require a showing that the alleged harassment was “severe or pervasive.” Instead, the question is whether the harassment subjected “an individual to inferior terms, conditions, or privilege of employment because of his or her membership in a protected class.” This new standard aligns with current New York City law.
- The bill makes changes to the standards for an allowable defense. It allows a defense when employers can demonstrate that “the 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.” However, it removes the so-called “Faragher/Ellerth defense” if an employee failed to utilize the employer’s reporting procedure.
- Domestic workers and non-employees (such as contractors, consultants, vendors, etc.) will receive the same protections against all types of harassment as employees.
- Courts and the Division of Human Rights (DHR) are authorized to award punitive damages in all employment discrimination claims involving private employers. Also authorized are attorney’s fees to a prevailing party.
- The 2019 legislation expands on existing limitations in the use of non-disclosure agreements (NDA) in sexual harassment settlements. These limits will apply to all discrimination and harassment claims. Also, effective January 1, 2020, NDA clauses in are not enforceable unless the clause notifies the employee that he or she is not prohibited from speaking with law enforcement, the U.S. Equal Employment Opportunity Commission (EEOC), Division of Human Rights, a local human rights commission, or his or her attorney.
- The 2019 legislation extends the 2018 prohibition on arbitration clauses so that it applies to all types of discrimination claims, not just sexual harassment. (Note that this provision is in limbo as a federal court considers whether the Federal Arbitration Act could pre-empt this provision of the legislation.)
- The 2019 legislation will extend the statute of limitations period to file a sexual harassment complaint with DHR from one to three years, effective for claims on August 12, 2020 and after. The statute of limitations remains one year for DHR discrimination claims other than sexual harassment.
Home health agencies, managed long term care plans and hospices are strongly encouraged to consult with their legal counsel about both the recent and impending changes in New York state’s harassment and discrimination laws.
LawTalk is a monthly feature from HCA’s counsel at Jackson Lewis. Please note that LawTalk articles are for general, informational purposes, are not legal “advice,” and do not create an attorney-client relationship. Because each case is unique, the information provided should be considered to be general in nature, and should never be considered a substitution for legal counsel. Readers should not take, or refrain from taking, any action based on information in this article without first seeking legal advice from competent counsel.