A lot changed in 2019 – especially for New York employers. This past year, the legal and regulatory landscape for companies in the state has taken on a whole new look. New rules were created, protections were expanded, and hurdles for aggrieved plaintiffs were lowered. In light of these significant changes, New York employers would be wise to review their employment practices, handbooks, and agreements to ensure that they are compliant with the new laws. So what changed? Below are some of the more important developments from this past year.
Increased Sexual Harassment Protections After requiring mandatory training for all employees in 2018, state and city officials maintained their efforts to implement new rules regarding sexual harassment in 2019.
Longer statute of limitations: The time within which plaintiffs must file sexual harassment claims with the New York State Division of Human rights was extended from one year to three years.
New hire education: Employers must not only maintain a written sexual harassment policy, but they must also provide it to their new hires. Employers must also distribute the policy at their annual sexual harassment prevention training.
Greatly Expanded Anti-Discrimination Protections After significant changes to the existing rules, employers are much more vulnerable to discrimination claims and lawsuits under both state and city laws.
More workers protected: All workers, not just employees, are now protected under the state and city’s anti-discrimination policies. This not only includes independent contractors and freelancers, but also third-party vendors.
More damages available to plaintiffs: Workers who successfully prove their claims for discrimination under the state law are also now entitled to uncapped punitive damages and reasonable attorneys’ fees. These damages were not previously recoverable.
Lower burden of proof for plaintiffs: The state law now essentially mirrors the city law in that Plaintiffs no longer need to demonstrate that the alleged harassment was “severe and pervasive.” As amended, harassing conduct is unlawful if it is merely something more than “petty slights or trivial inconveniences.” This makes its significantly easier for plaintiffs to demonstrate successful harassment claims.
Eliminating a key defense for employers: Until recently, employers could avoid liability for harassing behavior by maintaining appropriate policies and practices to prevent and address harassment and by showing that the employee failed to take advantage of those protections. Not anymore. This defense – known as the Faragher-Ellerth defense – has practically been eliminated in New York.
Restraining “professional appearance” policies: New rules explicitly prohibit discrimination based on hairstyles historically associated with race, as well as clothing or facial hair associated with religion. Thus, employers with vague “professional appearance” policies may be exposing themselves to claims of discrimination if those policies are implemented in such a way that they appear discriminatory.
Protecting new moms in the workplace: City employers must now provide a lactation room and a refrigerator for breast milk storage within a reasonable proximity to the employee’s work area. Employers must also maintain a written lactation room policy.
Continued Focus on Pay Equity 2019 also saw notable changes to pay equity – both through legislative efforts and judicial decisions.
More plaintiffs are protected: New York’s Equal Pay Act was expanded and now covers all protected classes – not just gender. Claims under this law may now be based on alleged discriminatory pay differences due to age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status, and domestic violence victim status.
No more questions on salary: A statewide ban on requesting salary history from job applicants or employees.
Put simply, the stakes are now higher for employers in New York, especially those operating entirely outside the city’s jurisdiction. Given the lower hurdles for plaintiffs, and greater rewards for successful claims, we expect to see the uptick in employment-related claims to continue. Employers should take the time to review their practices, policies, written employment materials to ensure that they are compliant with the new regulatory landscape and have minimized their risk of litigation.
If you would like to further discuss the recent change in the law, please do not hesitate to contact your attorneys at Weinstein + Klein. We are here to help.