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By Christine Malafi

On August 12, 2019, Governor Cuomo signed reformations to New York’s sexual harassment laws passed in June by State lawmakers. The 2019 reforms provide additional protection to those who have been subjected to workplace harassment and require that state laws be interpreted and construed “to maximize deterrence of discriminatory conduct,” regardless of federal law.[1] These amendments will likely lead to a more employee-friendly ruling climate. The laws will generally take effect 60 days from August 12, 2019, with some provisions having an effective date of 180 days.

Under the new laws, as of February 8, 2020 the definition of “employer” within the entirety of the New York State Human Rights Law has been expanded to include all employers in the state, including the state and its political subdivisions as well (i.e., counties, towns, and villages)[2] and all employers can be liable for any unlawful discrimination they permit it to occur against non-employees, not just sexual harassment.[3]

Up until these reforms, those claiming workplace harassment under New York State law were required to show that the harassment to which they were subjected was “severe or pervasive” to sustain their claim or legal action. The new laws lower the burden of proof by removing the phrase “severe or pervasive” from the legal standard,[4] making “sporadic” sexual harassment sufficient to support a claim. Employers may be liable for harassment (an unlawful discriminatory practice) when the harassment subjects an individual to inferior terms, conditions, or privileges of employment due to his or her membership in a protected class.[5] Employers have affirmative defenses to liability only where the conduct alleged is considered to be petty slights or trivial inconveniences by a “reasonable victim of discrimination with the same protected characteristic.”[6] Further, the new laws prohibit employers from using a complaining employee’s failure to report the alleged harassment or follow the employer’s internal policies and procedures as an absolute defense to a sexual harassment lawsuit.[7] Given these lesser standards, employers should address all forms of workplace harassment to avoid potential liability.

This new law expands the prohibition against mandatory arbitration clauses to all types of discrimination, not just sexual harassment,[8] and also weakens the effectiveness of non-disclosure agreements by expanding protections against their use to not only sexual harassment claims, but all claims for discrimination.[9] The law further permits those employees who sign non-disclosure agreements to participate in sexual harassment investigations and, as of January 1, 2020, voids any non-disclosure obligations with regard to future claims of discrimination unless the employee is told that he or she can still speak with a reporting agency. Moreover, all non-disclosure agreements must be written in “plain English,” be provided to the complainant in his or her primary language, and be given to the complainant at least 21 days before it needs to be signed. After signing, the complainant has seven days to revoke the document.

Further, as of August 12, 2020, the reforms extend the civil limitations period for employees to file discrimination complaints with the State Division of Human Rights from one to three years[10] and the civil and criminal statute of limitations for rape in the second degree to 20 years after the incident, and for rape in the third degree to 10 years after the incident.[11]

The power of the New York State Attorney General’s Office to prosecute discrimination cases has been expanded to all protected classes,[12] and the State Division of Human Rights may award attorneys’ fees in all types of discrimination claims. Moreover, courts may award punitive damages in all types of discrimination claims (involving private employers[13] only); courts no longer have discretion in awarding attorneys’ fees; and the law now provides that the court “shall” award attorneys’ fees to the prevailing party (however, employers who prevail must show that the claim was frivolous to have attorneys’ fees awarded).

A copy of the employer’s sexual harassment prevention policy must be provided to every employee in English and in the primary language of each employee, and must be provided yearly, at the mandatory training sessions under the law.

Finally, the new laws require the State Department of Labor and Division of Human Rights to regularly update the model policies and study the ways in which further progress can be made to prevent sexual harassment in the workplace.[14]

These extensive legal reforms will surely have far-reaching consequences. Businesses are advised to again review their workplace policies as soon as possible to remain in compliance with all New York State sexual harassment laws. If you have any questions or concerns regarding these changes to New York State law, please contact our office.

[1] N.Y. Exec. Law § 300.

[2] Id. § 292(5).

[3] Id. § 296-d.

[4] Id. § 296(h) (effective October 11, 2019).

[5] Id.

[6] Id.

[7]  This defense had been known as the Faragher-Ellerth defense, named after two U.S. Supreme Court cases.

[8] N.Y. Civ. Prac. L & R § 7515(a)(2) & (3) (to extent not inconsistent with federal law; see Latif v. Morgan Stanley & Co., LLC, No. 1:18-cv-11528 (S.D.N.Y. 6/26/19)).

[9] N.Y. Gen. Oblig. Law § 5-336(1)(a)(b) & (2); N.Y. Civ. Prac. L & R § 5003-b.

[10] N.Y. Exec. Law § 297(5).

[11] N.Y. Criminal Procedure Law § 30.10(2)(a-1) & (a-2); N.Y. Civ. Prac. L & R § 213-c.

[12] N.Y. Exec. Law § 63(9) & (10).

[13] Id. § 292(37).

[14] N.Y. Labor Law  201-g  (beginning in 2022 and every four years thereafter).

This article was originally published in Newsday. Read it here.

By Jamie Herzlich

As summer begins to fade away, an Oct. 9 deadline looms on sexual harassment prevention training for all employees.

Late last year, New York employers were given a nine-month extension from an original Jan. 1 state proposed deadline.

Now employers are encouraged to not delay.   All employers regardless of size must train their workers, experts say.

“Don’t put your head in the sand and wake up and it’s Oct. 10 and you’re not in compliance,” says Christine Malafi, a senior partner at Ronkonkoma-based Campolo, Middleton & McCormick LLP, which has been administering training for clients.

She said some firms are scrambling now that the deadline is fast approaching. Smaller firms in particular may not realize the training is required.

Still, it’s not too late to comply with the law, says Malafi, noting, “I think no one’s behind the eight ball yet.”

Among the requirements: The training must be interactive, include examples of conduct that would constitute unlawful sexual harassment, and include information on employees’ rights of redress and all available forums for adjudicating complaints.

State legislation awaiting the governor’s signature lowers the standard on what could be considered unlawful harassment from conduct deemed “severe or pervasive” to conduct rising above the level of “petty slights and trivial inconveniences.” If signed, that law could alter training down the line.

There’s no minimum required number of hours, says Malafi, whose training takes about an hour for employees and double that for managers and supervisors. “The new law makes it clear that managers and supervisors have heightened duties under the law,” she says, noting companies should be proactive in completing the training.

Carmine Inserra, CEO of ProSysCon Computer Technologies Inc. consultants in East Setauket, agrees.

He and his employees were trained in May by Malafi in a group session organized by the Three Village Chamber of Commerce. “First and foremost,” he says, “I want to promote a safe work environment regardless of the law.”

By Christine Malafi

On July 10, 2019, Governor Cuomo signed into law two new bills amending New York’s labor and employment requirements. These two new laws will affect all New York employers statewide. They are a continuing trend and an expansion on the RISE Act (see The
RISE Act: Suffolk County Bans Inquiring About Salary History), which banned inquiries into salary history throughout Suffolk County effective as of June 2019, as well as a similar ban passed in New York City in 2017.

The first new law amends the equal pay provisions of the New York Labor Law to include all protected classes under the New York State Human Rights Law.[1] Currently, this law applies only to equal pay regardless of sex. Employees who fall within these expanded protected classes are now entitled by law to receive equal pay to colleagues who do not fall within these categories for doing the same or substantially similar work. The standard has also been relaxed from “equal to” to “substantially similar to.” The law does not alter existing exceptions to the Labor Law which allow for differences in pay based on a seniority system, merit system, production-based system or a bona fide reason such as education, training or experience which is job-related and consistent with business necessity. This amended law is scheduled to take effect as of October 8, 2019.

The second new law amends the New York Labor Law by prohibiting employers from requesting, inquiring, and/or relying on a job applicant’s or employee’s salary and wage history as a factor when determining whether to hire the candidate or what salary to offer them. The law further prohibits an employer from: using an employee’s or job applicant’s salary history (current or former) for any other reason; refusing to hire or promote an employee who does not provide their salary history; or otherwise retaliating against an applicant or employee based upon their salary history or their refusal to provide such information. Employers can consider current employee salaries in hiring decisions, such as promotions.

Applicants or current employees are not prohibited from voluntarily disclosing their salary history, including for purposes of negotiating compensation, and employers are permitted, after hiring or promoting an applicant, to obtain confirmation of that person’s salary history to confirm the truthfulness of the past salary and wage claimed.

Nor does the law supersede any currently existing federal, state, or local law which requires the disclosure or verification of an employee’s salary history for employment or compensation purposes. This amended law is scheduled to take effect as of January 6, 2020.

What should employers be ready for with these new laws? New York employers should expect an increase in claims brought to court under the new amended Equal Pay Law, as it has lowered the standard for plaintiffs to prove their case. Furthermore, the expanded protected classes under which an individual can claim discrimination under the Equal Pay Law, as well as a statute of limitations which is six years long, means that employers may expect an increase in claims and should be aware of the greater potential damages any failure to properly comply with the law would bring.   

What should employers do to prepare? Given the new federal reporting requirements and to enable employers to potentially avoid costly litigation, all New York employers should consider conducting pay audits and should take the opportunity to review their company’s job application procedures and forms to remove references to salary history, as well as train personnel to avoid any salary history inquiries. Please contact our office with any questions you may have, as well as to discuss your specific business situation.

[1] Protected classes also include but are not limited to age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, and domestic violence-victim status.