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Governor Cuomo Signs Legislation Enacting Sweeping New Workplace Harassment Protections

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Governor Andrew M. Cuomo signed legislation to enact sweeping new workplace harassment protections.  This legislation strengthens New York’s anti-discrimination laws to ensure employees can seek justice and perpetrators will be held accountable by eliminating the restriction that harassment be “severe or pervasive” in order to be legally actionable; mandating that all non-disclosure agreements allow employees to file a complaint of harassment or discrimination; and extending the statute of limitations for employment sexual harassment claims filed from one year to three years.

Here are some of the amended law’s key changes and their effective dates:

Lowering the Standard for Proving Discriminatory Harassment

The new legislation broadens the legal definition of “harassment” to eliminate the “severe or pervasive” standard.  The newly amended law redefines harassment as any practice that “subjects an individual to inferior terms, conditions or privilege or employment because of the individual’s membership” in a protected category.  Any harassment based on a protected characteristic that rises above “petty slights or trivial inconveniences” will now potentially be actionable under the statute.

The new law also removes an employee’s failure to use an employer’s complaint procedure as a bar to suing for harassment.

This change goes into effect on October 11, 2019.

Sexual Harassment Policies and Training Materials Must Be Provided in Writing in Both English and an Employee’s Primary Language

The law requires that at the time of hire and at every annual sexual harassment training, employees receive a written copy of the employer’s policy and the sexual harassment training materials in both English and the language identified by each employee as his or her primary language.

This change is effective immediately.

Extension Time to File an Administrative Charge for Sexual Harassment

The time an individual has to file a charge with the New York State Division of Human Rights for sexual harassment in employment is extended from one year to three years.

This change goes into effect on August 12, 2020.

All Employers Will Be Covered by the Human Rights Law

Currently, the Human Rights Law applies only to employers with four or more employees (except for the ban against sexual harassment that applies to all employers).  All employers in New York State, regardless of size, will be subject to the Human Rights Law.  Numerous small employers in New York State will have to comply with the Human Rights Law for the first time.

This change goes into effect February 8, 2020.

Broader Protections for Non-Employees and Domestic Workers

The amended law extends protections against all forms of discrimination in the workplace to all contractors, subcontractors, vendors, consultants, or others providing services; and against all forms of discriminatory harassment to domestic workers.

This change goes into effect on October 11, 2019.

Prohibition on Mandatory Arbitration of All Discrimination Claims

Last year’s law prohibiting mandatory arbitration of sexual harassment claims has been extended to cover claims involving any type of discrimination.

This change goes into effect on October 11, 2019.

Punitive Damages and Attorney’s Fees Are Recoverable

Currently punitive damages are not recoverable and attorney’s fees are only recoverable where the basis of the discrimination is sex.  Under the amended law attorney’s fees and punitive damages will be recoverable in all employment discrimination and harassment claims under the Human Rights Law.

This change goes into effect on October 11, 2019.

New Restrictions on Non-Disclosure Agreements

The new law protects employees’ rights to pursue complaints by mandating that all non-disclosure agreements in employment contracts include language stating that employees may still file a complaint of harassment or discrimination with a state or local agency and testify or participate in a government investigation.

This change goes into effect on October 11, 2019.

Please contact our Director of Human Resources, Caroline Organ at 716-854-5034 or [email protected] with questions regarding this new legislation.