NEW YORK SENATE PASSES MAJOR SEXUAL HARASSMENT EMPLOYMENT PROTECTIONS
C.A. Goldberg, PLLC
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A package of bills aimed at strengthening New Yorker’s sexual harassment protections in the workplace passed last month in the NY Senate.
This suite of legislation aims to ensure that employees in both the private and public sectors are treated in a fair manner – and have resources available to seek accountability if they aren’t.
Fun fact: These bills passed in the week after former?Gov. Andrew Cuomo released a campaign?running ads?defending his character .?According to media reports?he spent $370 thousand on the commercials ?in which he called Leticia James’ report on his sexual harassment claims “bogus.” According to James, the Executive Chamber had fostered a “toxic” workplace that enabled “harassment to occur and created a hostile work environment.”
“It is the right of every New Yorker to be treated equally and respectfully in the workplace,” Senate Majority Leader Andrea Stewart-Cousins?said. “As lawmakers, it is our responsibility to protect survivors of sexual assault and harassment and ensure that all employers in New York State foster a safe and respectful work environment for their employees.”
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We’ve broken down the bills to help you New Yorkers understand what this all means for?your?rights in the workplace.
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-Who sponsored the bill:?Alessandra Biaggi
What does the bill do:?Reform current Non-Disclosure Agreement laws that financially penalize survivors who speak out about their abuse by prohibiting settlements that require plaintiffs to pay liquidated damages for violating their NDA.?
-Aim of the bill:?Stop liquidated damages clauses from financially deterring survivors from speaking out and holding abusers accountable.
As our founder Carrie Goldberg told the?New York Law Journal : the right to enter into NDAs is a “fundamental right that victims should be able to retain.”
“I am in favor of victims of sexual harassment and sexual assault having the same freedom to contact that any other party has,” Carrie?said . “I think that Sen. Biaggi does a good job of not going after NDAs in full but instead removing the liquidated damages clauses, which can be so punitive and bullying toward victims.”?
C.A. Goldberg, PLLC Senior Partner?Aurore DeCarlo ?echoed this: “This new legislative package offers victims protections that will give them the power to negotiate NDA conditions on their own terms without the risk of highly punitive penalties.”
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-Who sponsored the bill:?Senator Andrew Gounardes
-What does the bill do:?Ban “no rehire” clauses in settlement agreements for employees or independent contractors that have filed a claim against their employer.?
-Aim of the bill: To protect workers from being ‘blacklisted’ by companies for speaking out.
-What this could mean for our clients: This law makes a statement that New York will not shield harassing workplaces at the expense of the victims of harassment. “No rehire” clauses were created to protect employers from retaliation claims if a plaintiff would win a settlement, reapply, and then sue the company again when hired. But they have proven to be overly broad: applying to any employer regardless of size across the country, and any other entity that may purchase or be purchased by the employer. More than 12,000 mergers and acquisitions occurred in 2019 alone, therefore these clauses have become non-competes that lock victims out of entire industries. This ban would allow victims to move forward with new employment in the industries that they have experience and expertise.
Aurore DeCarlo , who leads C.A. Goldberg, PLLC’s employment and Title IX practices explains: “For victims of sexual harassment, being???justly compensated shouldn’t have to come at the price of being unilaterally silenced forever, banished from future career opportunities and ostracized in their industries. Powerful employers have always insisted on formulaic settlement terms that completely strip a victim of their voice and autonomy in the future of their careers.”
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-Who sponsored the bill:?Senator Brad Hoylman
– What does the bill do: would raise the statute of limitations to three years for all unlawful discriminatory complaints to be brought to the Division of Human Rights
-Aim of the bill: Give victims more sufficient time to come forward.?Recognizing that the time frame within which victims of unlawful discriminatory practices must file administrative complaints with the Division of Human Rights to trigger an investigation is insufficiently short as compared to the amount of time it may take for a victim to come to terms with their harassment.
-What this could mean for our clients: Victims who were previously silenced and blocked by the statute of limitations have more opportunity to process what happened and then, when ready, to hold the perpetrators (and those who enabled them) accountable.
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-Who sponsored the bill:?Senator Andrew Gounardes
-What does the bill do: Clarify who is to be considered an employee of public employers covered under the anti-discrimination provisions laid out by the Human Rights Law. Previous interpretations of “employer” excluded the personal staff of elected officials and judges in certain cases. This bill would rectify that.?
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-Aim of the bill: To close the infamous?“license to harass” loophole . It grants personal staff of elected officials and judges protection under NYS law – as their counterparts with other employers have.
-Erica Vladimer, a co-founder of the?Sexual Harassment Working Group ?(the powerhouse behind these bills) said:
“Closing the ‘license to harass’ loophole is quietly momentous… It’s hard to understate just how important and necessary this is.”
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-Who sponsored the bill: Senator Andrew Gounardes
-What does the bill do: Extend the statute of limitations for employment discrimination, including sexual harassment, from three years to six years.?
-Aim of the bill: To give survivors more time to process the harassment they’ve experienced and reach a place where they feel able to come forward.
–We commonly see that the context in which abuse or discrimination occurs affects a victim’s ability or willingness to pursue legal action. This is key in employment cases because:
Often victims need time to process what has happened before they feel able to act, and by that time the statute of limitations has run out. That is simply not good enough; victims need and deserve better.?
As our founder Carrie Goldberg told the?New York Law Journal :
“What we’ve found in our practice representing victims is that the diminishment they feel from the harassment deters them from feeling empowered to take action, and so it can take years for them to be ready to feel like they can go head-to-head with the person that discriminated against them.”
Carrie also noted that we are keeping an eye on the progress of the?Adult Survivor’s Act , which was passed by the state senate in 2021 but has not been put up for vote in the state Assembly.
“Victims of sexual assault need to be able to hold their abusers accountable, and we know the statute of limitations is too short.”?
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-Who sponsored the bill:?Senator Andrew Gounardes
-What does the bill do: Clarifies that release of personnel records to discount victims of workplace discrimination counts as a retaliatory action under the Human Rights Law and to provide additional recourse to victims of such retaliation.
-Aim of the bill: To ensure that employees can speak up without the threat of their confidential records being released in retaliation.
-Victims should not have to rescind their right to any privacy in order to do what is frankly a public service of naming corruption and abuses of power. Do we want to continue to work in a world where abusers are empowered because the cost of victims reporting is too damaging and intrusive?
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–?S.812A
-Who sponsored the bill:?Senator Alessandra Biaggi
-What does the bill do: Establishes a toll free confidential hotline for complainants of workplace sexual harassment.?
– Aim of the bill: to give workers from all backgrounds access to resources and support to seek accountability.
-Assisting workers in understanding the laws applicable to them and avenues available for seeking accountability. Contributing to a cultural shift towards redistribution of knowledge of the legal system, and therefore concentrated power, from those who abuse to those who are victims of abuse.?
As?Aurore DeCarlo , who leads C.A. Goldberg, PLLC’s employment practice explains: “It has become too convenient for large employers to?throw money at victims without taking on the responsibility of making systemic changes in their organizations.?These laws are an important step in encouraging institutional changes that can go further in providing safe and nurturing work environments for all employees.”
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Want to learn more about how laws apply to your situation? Let’s talk about your options:?Get in touch.?