New York employers are facing several major changes in employment law, including a ban on nondisclosure clauses in settlement agreements of discrimination, retaliation or harassment claims, the addition of new categories of protected classes, and an extended statute of limitations for discrimination claims.
On November 17, Governor Kathy Hochul signed Senate Bill S4516 into law, banning clauses in agreements settling discrimination, retaliation or harassment claims from requiring the complainant to pay liquidated damages or forfeit consideration for breaches of nondisparagement or confidentiality.
The new law renders the agreements’ release unenforceable if such a clause is included, but may bind the employer to the other settlement provisions, including the payment amount.
In addition, pursuant to S4516, agreements to settle discrimination, retaliation or harassment claims that require a statement by the complainant that they were “not in fact subject to unlawful discrimination” are prohibited; employees must also be given up to 21 days to consider an agreement to keep the facts and circumstances of an underlying discrimination claim confidential, but they are allowed to sign the agreement in less than 21 days if they choose.
Independent contractors are explicitly covered under the new law, which provides that agreements not to disclose factual information related to future claims of discrimination do not include the attorney general.
In a second bill, employees gained an additional two years to file discrimination claims with the Division of Human Rights.
Previously, state law provided a three-year statute of limitations only for claims of sexual harassment, with a one-year time limit for all other claims of unlawful discrimination.
Senate Bill S3255 changed that, bringing the statute of limitations period for filing claims for all forms of unlawful discrimination into a uniform time of three years.
The bill takes effect on February 15, 2024.
One day earlier, on November 16, Hochul signed Assembly Bill A1029C, which provides for the automatic sealing of certain convictions after a passage of time from either imposition of sentence or release from parole or probation, if the defendant does not have a current charge pending.
For example, convictions for misdemeanor charges and driving while impaired will be automatically sealed three years after incarceration, while felony convictions will be sealed after eight years.
The Clean Slate Act excludes sex crimes and most serious felonies, such as murder, first degree kidnapping and arson. While access to the sealed criminal records would not be available to most, the law does include exceptions for certain employers (e.g., facilities that care for children or people with disabilities, among others).
A1029C will take effect on November 16, 2024.
Finally, on November 22, New York City added height and weight to the list of characteristics protected against discrimination in employment, public accommodations and housing.
Int. 209A contains exceptions where required by federal, state or local law or regulation as well as for particular jobs or categories of jobs for which a person’s height or weight could prevent them from performing the essential requisites of the position.
The law also provides that it does not prevent an employer from offering incentives that support weight management as part of a voluntary wellness plan.
Why it matters
New York employers should familiarize themselves with the new laws, particularly those that are already in effect, to ensure compliance. One measure vetoed by Hochul following the legislative session, Senate Bill S3100A, would have had New York join other states, including California, North Dakota, Oklahoma and Minnesota, in banning noncompete agreements in the state.