Looking Ahead: Potential Changes to New York Employment Law

With the proliferation of new employment laws in New York it can be challenging for employers and employees to stay on top of the changes, know what is required of them, and know their rights. While adjusting to comply with current laws, it’s also a good idea to keep one eye towards the future.

What’s New?

Sexual Harassment Protections — Last week, the New York State Division of Human Rights operated workplace sexual harassment hotline launched. The hotline, which was mandated by legislation (S.812B/A.2035B) signed into law this spring, is staffed by volunteer pro bono attorneys. The goal is to provide accessible free legal advice to employees who experience harassment in the workplace. Employers should update required sexual harassment training and notices to include the hotline information.

Salary TransparencySome localities have recently passed laws that require salary transparency in job postings – advertising a salary range.  Passed by both the Senate and Assembly this June, Senate Bill 9427A or Assembly Bill A10477 seeks to mandate salary transparency on the state level. The law has not yet been delivered to the Governor to sign. It requires New York employers, employment agencies, employees, or other “agents thereof” to disclose the compensation for a “job, promotion, or transfer opportunity” or a range with the maximum and minimum compensation for the position. It will also require employers to post the job description if one exists. The law passed by both chambers also includes language which bars employers from retaliating against applicants or current employees who seek to have employers comply with the posting requirements. Notably for employers, employers will be required to “keep and maintain necessary records to comply with the requirements of this section including, but not limited to, the history of compensation ranges for each job, promotion, or transfer opportunity and the job descriptions for such positions, if such descriptions exist.”

Non-Disclosure Agreements — Another bill on the horizon, passed by the Senate this March, “Prohibits settlement agreements in any claim involving sexual harassment or any other form of discrimination prohibited by law from containing any condition that requires the complainant to pay the defendant liquidated damages in the event that the plaintiff violates any nondisclosure agreement included in such settlement agreement.” Senate Bill S738, which has not passed the Assembly, if signed into law would take effect immediately and apply to all non-disclosure agreements moving forward. But what would that mean for employers and employees signing non-disclosure agreements?

The Bill, if passed by the assembly, further amends the General Obligations Law § 5-336 by adding that non-disclosure agreements based on claims of discrimination, harassment, or retaliation are not enforceable if:

(a) the complainant is required to pay liquidated damages for violation of a nondisclosure clause or nondisparagement clause; (b) the complainant is required to forfeit all or part of the consideration for the agreement, for violation of a nondisclosure clause or nondisparagement clause; or (c) it contains or requires any affirmative statement, assertion, or disclaimer by the complainant that the complainant was not in fact subject to unlawful discrimination, including discriminatory harassment, or retaliation.

(Senate Bill S738). If the bill becomes law, it will also amend the part of § 5-336 that voids any agreement to not disclose information related to future complaints unless the employer provides notice that they complainant is not barred from employers to notify employees that in the case disclosing relevant information to law enforcement, the EEOC, and the State Division of Human Rights.  It does so in two notable ways that employers should take note of if the Bill is signed into law. First, Independent contractors would be included in the list of those that employers must notify. Second, it adds the Attorney General to the list of entities that employers must notify complainants of their rights to disclose relevant information.

The goal of the bill is to “protect survivors from facing financial sanction for sharing their experiences of harassment and discrimination.” Per Section 2 of S738 the law would not apply retroactively to non-disclosure agreements signed prior to the law taking effect.

Protections for Freelance WorkersSenate Bill S8369B or Assembly Bill A9368A have passed both chambers and are waiting to be signed into law. The law seeks to “replicate the labor rights of NYC’s Freelance Isn’t Free Law in state Labor Law” which “created basic labor protections for freelance workers such as the right to a written contract, timely and full payment, and protection from Retaliation.” The law stipulates what a written contract must include and timeline for payment on or before the date such compensation is due under the terms of the contract; or if the contract does not specify when the hiring party must pay the contracted compensation or the mechanism by which such date will be determined, no later than thirty days after the completion of the freelance worker’s services under the contract.

Independent contractors who file complaints with the state and bring civil action against the violating party are entitled to damages worth the contract value plus additional remedies depending on the violation. For example, failure to provide timely payment may result in double damages, injunctive relief, etc.

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