New York Employers – If You Can Make It Here, You Can Make It Anywhere (except California, maybe)

There’s a saying that if you can comply with California’s employment laws, then you’ve done enough. Now whether that’s an actual saying or just a saying in our circles, New York won’t be one-upped! This week, we’re discussing a slew of employee-friendly legislation in the Empire State and some compliance measures that we think might help. Happy last non-Summer Friday!

New York Employers Who Mismanage Sexual Harassment and Discrimination Claims – Be Careful and Be Warned

We’ve recently seen a wave of laws governing sexual harassment in the workplace, including recent laws banning mandatory arbitration clauses for workplace sexual harassment and sexual assault claims. New York (again) enacted new laws reshaping how workplace sexual harassment and discrimination claims should be handled. Most recently, three bills were signed into law that amended the New York State Human Rights Law (“NYSHRL”) to:

  1. Prohibit employers from releasing an employee’s personnel file in response to an employee’s complaint, testimony, or assistance in any proceeding under the NYSHRL, as this will be considered an unlawful retaliatory practice;
  2. Require that employers advise employees about the newly-created toll-free, confidential workplace sexual harassment hotline once it goes live on July 14, 2022 (we suggest you include it in your handbooks and any sexual harassment-related posters); and,
  3. Provide that the NYSHRL applies to all public employees and officials.

There are also several bills coming down the pipeline that have caught our attention. First, the “Let Survivors Speak Act” would amend the law to prohibit settlement agreements involving discrimination or sexual harassment from containing: (1) non-disparagement clauses; (2) non-disclosure clauses; (3) liquidated damages or forfeiture in the event of a violation of a non-disparagement or non-disclosure clause; or (4) disclaimers that the complainant wasn’t actually subject to unlawful discrimination, sexual harassment, or retaliation. These are VERY common provisions seen in almost all such settlement agreements. Maybe not for long.

Additionally, two other bills that are pending approval would triple the statute of limitations for administrative claims for unlawful discriminatory practices (from one year to three years) and double the statute of limitations for harassment under the NYSHRL (from three years to six years).

We’ll keep you posted, but in the meantime revisit your handbooks, sexual harassment policies (especially with respect to the toll-free, confidential workplace sexual harassment hotline), and employment agreements.

New York Plans New Lien Law for Wage Violations

The New York Legislature has been pretty busy lately. The Senate is on the verge of passing a bill known as the Securing Wages Earned Against Theft (“SWEAT”) bill, which would allow an employee to file a notice of lien for unpaid wages within three years from the end of their employment . . . upon assertion of a “wage claim,” broadly defined as a claim the employee suffered a violation of the New York Labor Law. That’s right, this SWEAT bill would effectively allow an employee to attach a lien to an employer’s personal property (both company property and individual property), for one year (unless the employee files for an extension), by simply claiming something like they’re owed overtime (unclear at this point whether the employee would need to file a lawsuit or claim with the Department of Labor, or if a mere accusation is sufficient).

If this SWEAT law works like other lien laws in New York, an employer will likely need to break a sweat and jump through a few hoops to challenge a wage lien – all triggered by possibly a simple accusation of a claim for unpaid wages, rather than after some finding of liability. As if New York employers didn’t have enough to sweat about (last one, we promise) when it comes to wage and hour laws, this is all the more reason to button up those wage payment practices.

If this bill sounds familiar it’s likely because a nearly identical bill was passed in 2019 but vetoed by then-Governor Cuomo. As of this update, Governor Hochul has not indicated her stance on this bill.

Notice of Electronic Monitoring Went Into Effect on May 7th

A while back, we warned you about New York’s new law requiring disclosures of employee electronic monitoring. Under the new law, private employers must disclose to new employees (and obtain written acknowledgements) that their telephonic and electronic conversations or transmissions (whether through emails, instant messages, internet use, etc.) may be subject to monitoring or interception.

For current employees, the employer must post a notice that can be easily viewed by those employees (we recommend adding this as a provision in your handbook too!). The notice must state that:

any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means . . .

Employers who don’t give this notice and disclosures are subject to State-imposed fines up to $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and any subsequent offenses.

The new law went into effect on May 7, 2022, so, if you haven’t already, make sure your handbooks have a policy regarding electronic monitoring, obtain the necessarily acknowledgements from new employees moving forward, and post the above notice.

As always, if you’ve got questions – you know we’ve got answers.

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