NY Employers: A Stormy Winter Approaches

Labor & Employment Workforce Watch
October 2019

While vacations and barbecues were the order of business for many this summer, New York’s lawmakers were busy at work serving up a broad, new set of legal protections for employees and applicants in the State of New York. Effective dates for these new workplace rights vary, with some having taken effect immediately in July 2019, some going into effect in October 2019, and the remaining becoming effective in February 2020. The cumulative result of this summer spurt of legislative activity is that, by the first quarter of 2020, New York employers will be subject to a dozen new rules and standards. A synopsis of the changes is as follows:

  1. The New York State Human Rights Law (HRL) now applies to all employers in the State of New York, regardless of size.
  2. The HRL’s protections against harassment extend beyond sexual harassment to protect employees from harassment based on any of the many statutorily-protected classes or acts specified in the law.
  3. The definition of prohibited harassment reaches beyond conduct that is severe or pervasive to include any “inferior terms, conditions or privileges of employment.” A plaintiff now may not need to identify a comparator to show he or she was subjected to inferior terms of employment.
  4. There may no longer be a defense to a harassment claim based on the employee’s failure to notify the employer of the harassment or to invoke the employer’s or a governmental agency’s complaint procedures (i.e., there is no Ellerth/Faragher defense). Instead, employers may now assert an affirmative defense by showing that the alleged harassment “does not rise above the level of what a reasonable victim of discrimination … would consider petty slights or trivial inconveniences.”
  5. Unlawful race discrimination under the HRL now may be found in conduct or policies that discriminate based on “traits historically associated with race, including but not limited to, hair texture and protective hairstyles… such as braids, locks, and twists.”
  6. Unlawful discrimination under the HRL also may be found in an employer’s requirement that an employee violate or forego a sincerely held practice of his or her religion relating to “wearing of any attire, clothing or facial hair in accordance with the requirements of his or her religion,” unless a reasonable accommodation of the practice will cause undue hardship to the conduct of the employer’s business.
  7. The HRL’s prohibition against the discriminatory practices defined in the statute also now protects non-employees in the employer’s workplace (including contractors, subcontractors, vendors, consultants or any “other person providing services pursuant to a contract in the workplace”), when the employer, its agents or its supervisors “knew or should have known that such non-employee was subjected to an unlawful discriminatory practice in the employer’s workplace, and the employer failed to take immediate and appropriate corrective action.”
  8. A private employer found liable for violating the HRL will be subject to injunctive relief and compensatory damages, including punitive damages and attorneys’ fees.
  9. A claim under New York’s Pay Equity Law is available, not only to employees who claim a gender-based pay disparity, but also to an employee who is a member of any class or category protected under the HRL. A claimant can maintain a pay equity claim by showing a pay disparity between his or her job and a “substantially similar” job held by an employee outside the claimant’s protected class, unless the employer can prove it is entitled to one of the statutory defenses, such as training, education, experience, or any other factor deemed bona fide under the law.
  10. An employer cannot inquire about an applicant’s or employee’s previous wage or salary history or rely upon such information in determining whether to interview an applicant, make an offer employment, or determine a rate of pay.
  11. An employer cannot include non-disclosure and confidentiality clauses in settlement agreements settling any type of discrimination or sexual harassment claim, unless the employer satisfies the specific pre-conditions set forth in the New York General Obligations Law.
  12. Confidentiality and non-disclosure clauses are void unless it is clear they do not prohibit complaints to, or participation in investigations by, government agencies and that they permit disclosure of any facts necessary to obtain unemployment, Medicaid, or other public benefits.

Before winter comes, every employer in New York should review their policies and practices to ensure compliance with the changing employment law landscape in New York.