Mid-Year Legal Update, Pending Legislation and What Employers Should Do Next

Thomas Kung, Esq; Richard Stern, Esq.

Mid-Year Legal Update

Hotline for Workplace Harassment Complaints

Earlier this year, New York State passed a law requiring the establishment of a confidential, state-wide, toll-free telephone hotline to provide counsel and assistance to individuals with complaints of workplace sexual harassment. On July 19, 2022, Governor Hochul announced the launch of this hotline, 1-800-HARASS-3 (1-800-427-2773), which will operate during regular business hours and will be staffed by pro bono attorneys from the New York State Division of Human Rights. While further guidance is expected, employers should now include information about the harassment hotline in materials provided to employees regarding sexual harassment.

EEOC Revised Guidance on Employer COVID-19 Testing

Considered a medical test, the EEOC requires that COVID-19 testing of employees be “job related and consistent with business necessity.” Previous EEOC guidance stated that mandatory worksite COVID-19 testing always met this standard, however, the new guidance going forward states that workplace testing is no longer automatically compliant. Employers will now be required to determine whether workplace testing is job related and consistent with a business necessity based on current pandemic and individual workplace circumstances. Considerations set forth by the EEOC include: level of community transmission; types of contacts between employees in the workplace or elsewhere they are required to work; vaccination status of employees; possibility of breakthrough infections; ease of transmissibility of current variants; severity of illness from current variants; accuracy and speed of processing for different types of viral tests; and potential impact on operations if an infected employee enters the workplace.

Pending Legislation

No-Rehire Provisions in Settlement Contracts

Earlier this year, the New York State Senate passed a bill that would render the release of any claims in a settlement agreement unenforceable if the agreement contains language stating that the employee is prohibited from applying for, accepting or engaging in future employment with the employer or any entity related to the employer. This bill would also apply to independent contractors. If a release and settlement agreement is rendered unenforceable by the inclusion of a no-rehire provision, the employer still remains bound by all other provisions of the agreement. This bill is currently with the New York Assembly and, if passed, would go into effect 60 days from the date of the governor’s signature.

Extension to Statute of Limitations for Employment Discrimination Actions

On March 1, 2022, the New York State Senate passed a bill that would extend the statue of limitations for employment related discrimination cases from the current three-year period to a six-year period. The bill is currently with the New York Assembly and, if passed, would go into effect 60 days from the date of the governor’s signature.

Non-Disclosure Provisions in Settlement Contracts

The “Let Suvivors Speak Act” would prohibit any settlements or any resolutions of claims involving discrimination, harassment or retaliation that require the complaining employee to pay liquidated damages or forfeit all or part of the consideration for a violation of a non-disclosure provision. The Act would further prohibit any statement or disclaimer that the complaining employee was not subject to discrimination, harassment or retaliation. The Act is currently with the New York Assembly and, if passed, would go into effect immediately upon being signed by the governor and would apply to all agreements entered into on or after that day.

What Employers Should Do

New York State employers are facing a wide array of changes in laws that effect numerous policies and procedures in the employment context. To ensure compliance for 2022, New York State and City employers should do the following:

Review and revise employee handbooks to ensure that they are up to date with the changes in laws;
Ensure workplace posters and notices are up to date;
Suspend any mandatory workplace COVID-19 testing and assess, based on the factors above, whether continued mandatory testing is job related and a business necessity;
Review and revise policies and procedures to ensure compliance with sick leave laws, including COVID-19 specific leave and vaccination laws, as well as vaccine and/or mask mandates that may be extended;
Ensure compliance with minimum wage laws in accordance with state-wide changes;
Keep an eye on bills under consideration to ensure compliance with laws that are not yet effective.

The Author