16

May, 2022

WHD Guidance Highlights Retaliation Protections and Enforcement

By Tracey I. Levy

Retaliation is a thorny problem.  There are a multitude of laws at the federal, state and local level that are intended to protect employees’ rights in the workplace.  But those protections amount to little if employees are unable to assert those rights without jeopardizing their standing with their employer or suffering other adverse consequences.  As a result, virtually every law granting employees legal protections in the workplace additionally prohibits employers (and sometimes others) from retaliating against employees who assert their legal rights.

Broader Standards and Greater Publicity Warrant Education

Early in my legal career, before the internet was widely known and used, the conventional wisdom was that we educated supervisors and managers on their obligation not to retaliate, specifically in response to complaints of harassment or discrimination, but in training sessions attended by the rest of the workforce, we did not talk too much about retaliation.  We did not want to give anyone any ideas on how to file a legal claim.  A seminal U.S. Supreme Court decision in 2007, Burlington Northern Santa Fe Railroad Co. v. White, adopted a broad definition of retaliatory behavior under Title VII, and the conventional wisdom changed as the floodgates started to open.  Last year, nearly 56 percent of all charges filed with the Equal Employment Opportunity Commission included a retaliation claim, whereas less than 30 percent of the charges filed before the Burlington Northern case had included such a claim.  Under the Burlington Northern decision, even conduct by coworkers, whether on or off the job, can give rise to a retaliation claim.  The only way to address that liability risk is by educating everyone in the workplace with regard to the prohibition against retaliation – what retaliation looks like, and what is expected of employees to prevent it.

This year, the U.S. Department of Labor (DOL) seems to have placed renewed emphasis on the subject of retaliation.  The Wage and Hour Division (WHD) issued a Field Assistance Bulletin, “Protecting Workers from Retaliation,” and a powerpoint presentation, “Unlawful Retaliation Under the Laws Enforced by the Wage and Hour Division” that clearly outline the numerous laws enforced by the Wage and Hour Division, the retaliation prohibitions contained in each of those laws, examples of the types of behavior that are considered retaliatory, and the remedial actions that the DOL will take in those situations.  The WHD has also launched a new antiretaliation website, dedicated to educating employees on what constitutes retaliation and how to contact the WHD for help.  These resources serve as a clear reminder to employees and employers of the breadth of the WHD’s enforcement powers and interests.

Just an Inference

It only takes an inference of retaliation for an employee to raise a claim that falls within the Wage and Hour Division’s remit, and that inference can be made whenever three elements come together.  First, the employee engages in protected activity by:

  • raising a concern about a possible violation of legal rights
    • related to wages and reasonable break time under the Fair Labor Standards Act (FLSA),
    • job-protected time off under the Family and Medical Leave Act (FMLA),
    • immigration status under the H-2A or H-2B Visa programs,
    • worker treatment under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), or
    • rights as an employee of a federal contractor under the Executive Orders establishing and increasing the minimum wage (E.O. 13658 and E.O. 14026), or mandating paid sick leave (E.O.13706);
  • asserting rights under the labor laws, such as by requesting time off under the FMLA, questioning an employer about wages withheld, or objecting to kickbacks of wages; or
  • participating in the investigation of a complaint, whether by consulting with the DOL or cooperating in an investigation.

Second, the employee experiences anything by way of “adverse action,” including not just disciplinary action, termination, reduced work hours or pay, or shift changes, but also less favorable working conditions, threats or blacklisting by other employees.  Third, there is a causal connection between the protected activity and the adverse action, which can be established by direct references or simply by close timing between the first two elements.

Learning from Real World Examples

The WHD’s guidance includes real examples, some of which describe pretty egregious behavior on the part of employers, and some that warrant further reflection.  One example references a new mother who took longer than her allotted lunch break to pump breastmilk.  Her boss told her she could not use her meal break for “personal stuff,” and when she asked if she had a right to take another break for pumping later in the day, her boss sent her home for the rest of her shift without pay.

The WHD found the boss retaliated against the new mother in violation of the FLSA, which grants nursing mothers a legal right to take reasonable break time to express breast milk.  Without the legal protection for nursing, however, at least in a non-union environment a manager might classify the same behavior as tardiness followed by insubordination.  A manager would typically have lawful, discretionary authority to send the employee home for the day for that type of behavior.

Employers can learn from the WHD’s example.  It is not clear if the manager knew that the employee’s break time requests, when used for expressing breastmilk, fell within a legally protected category.  Make sure your managers do.  Managers need to be trained as to the scope of legal protections provided under wage and hour and other labor laws.  They need not be expert on all the intricacies of these laws but should have sufficient familiarity with their scope so as to know when to ask a question or get advice – before taking actions that may later be found retaliatory.

Monitor for the Subtler Behaviors

It can be hard to separate our feelings and emotions from the objective requirements of the anti-retaliation provisions.  If a manager, supervisor or even coworkers feel that an asserted complaint is exaggerated or unjustified, there may be an inclination to treat the complainant less favorably, criticize the complainant for having raised the complaint, or avoid the complainant altogether.  These very human responses fall within the range of subtler forms of retaliation.

Employers can rely on their systems and processes to monitor for (and thereby prevent) retaliatory changes in pay, disciplinary action, transfers, or outright termination.  But behaviors like less favorable working conditions, threats or blacklisting by other employees are more subtle, and cannot be monitored in the same fashion.  Rather, addressing these behaviors requires education and a shared sense of responsibility, building an organizational culture in which such forms of retaliation will be recognized, called out for what they are or appear to be, and promptly addressed.  There are no quick or easy fixes to establish that type of organizational culture, which is what makes retaliation such a thorny problem.  But employers that do not make the effort risk facing the full panoply of remedies that the WHD has so cogently outlined in its antiretaliation guidance.

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4

April, 2022

NYC Wage Transparency Law Has Its Limits Under NYC Guidance

By Tracey I. Levy

New guidance issued by the New York City Commission of Human Rights expounds on both the breadth, and the limitations, of the city’s new wage transparency law.  The law, which we discussed in our prior blog article, requires employers posting for a position in New York City to state in their job posting the minimum and maximum salary for the position.  This requirement is currently scheduled to take effect May 15, 2022, but there is a pending legislative proposal under consideration in the City Council to delay the effective date.

Breadth in Applicability

The wage transparency law covers employers with four or more employees or one domestic worker.  When counting “employees,” business owners, employees, interns and independent contractors must all be considered, as long as at least one of them works in New York City.  Employment agencies are also covered.  There is an exception for temp firms seeking applicants to join their pool of available workers, but the law provides that the employers who work with those temp firms must follow the new wage transparency law.

The law also extends to every form of advertisement or job posting – whether internal or external, printed or electronic, published or circulated.  And it covers any type of job – whether a new position, a promotion or a transfer.  Employers need not advertise for a position in order to hire, but if they do post or advertise in any way then the guidance states that they must comply with the law.

Limitations in Wage Information to Be Disclosed

Significantly, though, the wage transparency law is about disclosure of base pay only.  Whether defined as an hourly wage or a fixed salary, that dollar value must be disclosed.  The guidance makes clear that employers are not required to disclose, for example, either in specific or general terms, any bonuses, commissions, tips, stock, overtime pay, or other forms of compensation that may apply to the position.  Compensation structures that will thereby experience little impact from the new law include:

  • sales jobs paying largely on a commission basis;
  • mid-level and higher positions in industries such as financial services for which the bulk of compensation is in the form of discretionary bonuses; and
  • positions at tech firms and other start-ups that offer stock option awards as a significant component of their overall compensation plan.

New York City’s new law also does not require disclosure of wage supplements, such as paid time off, or benefits, including insurance or pension plan contributions.  In this regard the law differs from its closest counterpart in Colorado, where employers are required to include in their job postings a general description of any bonuses and the nature of benefits provided.

The law further has its limitations – and the guidance is not particularly helpful – in regard to the wage range to be posted.  Where the pay is fixed, perhaps at or slightly above minimum wage, meeting this requirement is as simple as posting “$15 per hour.”  Where there is more flexibility or variability, depending on factors such as the candidate’s prior skills and experience or meeting the candidate’s stated salary expectations, New York City employers are directed to post a wage range based on the employer’s honest belief as of the time of the job posting as to the range of pay it would offer to a successful applicant.

States with similar wage transparency laws, most notably neighboring Connecticut, have defined benchmarks for employers to use in defining the wage range.  These may be an applicable pay scale, the amount budgeted for the position, or the actual range of wages for those employees currently holding comparable positions.  The New York City law, and this new guidance, are both silent on that point.  Nothing in the law or the guidance states that an employer cannot hire someone at a wage that is above or below the posted range, but there also is nothing in the law or guidance that assures an employer it can make those hiring decisions.

Employers that hire, transfer or promote candidates into roles at wage rates that fall outside the posted range must therefore be prepared to demonstrate the bona fides of their original wage range estimate, as reflected in the job posting.  These employers also should be prepared to explain why/how the wage they ultimately agreed to pay was not foreseeable at the time of the job posting.

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21

December, 2021

Diverging Vaccine Mandates at NYC/NYS/Fed Levels Present Pitfalls for Unwary Employers

By: Alexandra Lapes and Tracey I. Levy

Employers in New York face a panoply of overlapping and inconsistent obligations at the local, state and federal levels as the government seeks to contend with the latest threats from COVID-19.  New York issued a statewide mandate on December 10, 2021, that all businesses and venues must implement a full vaccination requirement or require masks be worn for everyone on their premises, effective as of December 13, 2021.  In tandem with New York State, on December 15, 2021, New York City updated its “Key to NYC” program to require employers implement a vaccine mandate and require employees who work in-person or interact with the public to show proof of vaccination by December 27, 2021.

Businesses that were part of the original Key to NYC program, which required only one dose of a COVID-19 vaccine, must require proof of a second dose by December 27, while all remaining businesses in the city must require employees to show proof of an initial vaccine dose by December 27, and proof of a second dose within 45 days thereafter.  New York City considers a covered workplace to be any location — including a vehicle — where an employee works in the presence of at least one other person.

Presently, the state’s mandate is effective until January 15, 2022, when it will be reevaluated and may be extended, while the city’s mandate does not have a specific sunset date.

  1. The mandate is full vaccination or full masking – no mix and matching permitted

Many employers in recent months had relaxed masking requirements for employees who are fully vaccinated, while those who are not vaccinated were required to wear a mask in the workplace, except when seated in a private office.  The state’s FAQs make clear that hybrid approach is no longer permissible.  An employer must either require everyone on premises to be fully vaccinated or require everyone — regardless of their vaccination status — to wear a face mask in the workplace.

Under state law, an employer can choose whether to implement a vaccine mandate or mask requirement, but the chosen requirement must apply in its entirety to all staff, patrons, and visitors throughout the premises.  New York City employers do not have that option – they must institute a full vaccination mandate.  If full vaccination is not applied uniformly to all, then New York State requires the employer to ensure everyone in its workplace complies with the masking requirement.

  1. Full vaccination currently means up to two doses

New York State defines “fully vaccinated” in accordance with the CDC’s definition, as 14 days past an individual’s last vaccination dose in their initial vaccine series (14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine; 14 days past the one-shot Janssen/Johnson & Johnson vaccine).

  1. Face masks can be removed only for limited circumstances of limited duration

For businesses adopting a masking requirement, that requirement allows few exceptions.  In offices, masks can be removed only when necessary to eat or drink, or when an employee is alone in an enclosed room. Even in restaurants and bars, unless the business is strictly enforcing a full-vaccination requirement for everyone on premises, patrons can only remove masks when eating or drinking; restaurant staff must be wearing a face mask at all times.  For tv and film production, the talent can remove a face mask during filming, but must maintain six feet of distance from all others, such as the crew and production staff, and masks must otherwise be in place for everyone on premises. Hospital and healthcare settings must continue to ensure all employees and visitors are masked at all times, regardless of vaccination status.

  1. Granting a vaccination exception for those with accommodations means the employer does not have a “full vaccination” program under the New York State mandate

Employers who grant exemptions as an accommodation for individuals because of a medical, religious or other legally protected reason and permit those individuals entry on the premises apparently must then implement a masking requirement for everyone.  While the impact of accommodations on the full vaccination requirement is not explicitly addressed in the FAQs, one specific FAQ juxtaposes the prohibition on a hybrid approach of full vaccination or masking with a reference to the continuing responsibility of “unvaccinated individuals, including those with medical exemptions” to wear masks in accordance with CDC guidance.  The FAQs also footnote that they should be interpreted consistently with the Americans with Disabilities Act, workplace safety guidelines and applicable regulations.  It therefore appears that, when exceptions are made and a full-course vaccine requirement cannot be maintained in its entirety, all individuals in the workplace must be held to a masking requirement.

  1. Employers cannot automatically ban from the workplace all employees requesting a vaccination exemption as a reasonable accommodation

New Guidance for Employers on Equitable Implementation of COVID-19 Vaccine Requirements, published by the New York City Commission on Human Rights (NYCCHR), reminds New York City employers of their obligation to engage in a “cooperative dialogue” with any employee who requests to be exempted from complying with a vaccination requirement as a reasonable accommodation – whether based on disability, pregnancy, childbirth, lactation, religious beliefs  or observances, or status as a victim of domestic violence, stalking, or sex offenses.  The guidance recognizes that remote work or unpaid leave – actions that keep the unvaccinated individual out of the workplace – may be a reasonable accommodation, but indicates that placing an unvaccinated employee on leave should only be considered if no reasonable accommodation is possible that would enable the employee to continue performing the employee’s job duties in the workplace without posing a direct threat or an undue hardship.

Employees are supposed to submit requests for a reasonable accommodation under the Key to NYC program by December 27, 2021.  If an accommodation is granted, New York City employers must keep record of the basis for the accommodation and any supporting documentation.

  1. NYC requires employers verify and keep record of vaccination status

Under the Key to NYC program, employers cannot rely on an honors system or self-attestation of vaccination status.  Rather, employers must check each employee’s vaccination record (a CDC or other official immunization record, or the NYC COVID Safe App, the CLEAR Health Pass or the Excelsior Pass) and keep a record of each worker’s proof of vaccination, either by:

  • making a copy of the employee’s vaccine proof or a record of a reasonable accommodation with supporting documentation;
  • creating a paper or electronic record that includes the employee’s name, vaccine status including the date they must provide the second dose (if only submitting proof for the first dose), and record of a reasonable accommodation with supporting documentation; or
  • checking each employee’s proof of vaccination before they enter the workplace each day and keeping a record of each verification.

Independent contractors or non-employees must also provide proof of vaccination.  A New York City business can request that a contractor’s employer confirm proof of vaccination.

  1. NYC is requiring signage and certification of compliance

New York City employers have two additional obligations:

  • complete an official attestation sign created by the Department of Health and Mental Hygiene, affirming compliance with the vaccination requirement, and post it in a public space by December 27, 2021 (even if the business also has its own signage about vaccination); and
  • place the Vaccination Required Poster for Businesses in a place that is clearly visible to people before they enter the premises.

Pulling it together, with consideration of pending federal mandates

In addition to the layers of requirements issued by New York State and New York City, employers nation-wide with 100 or more employees need to anticipate that they will be subject to vaccination or weekly testing requirements under an OSHA directive, as we discussed in this prior blog article.  We have summarized the combined impact on the federal, state and local levels in the chart below.

While enforcement of the OSHA directive had been stayed by the federal appellate courts, the Sixth Circuit Court of Appeals dissolved the stay on December 17, 2021.  Pending further action by the Supreme Court, OSHA has advised employers that it will not issue citations for noncompliance before January 10, 2022, and will not issue citations related to the testing option before February 9, 2022, provided the employer is making good faith efforts to come into compliance.

Employers that are imposing a full vaccination requirement, either under the Key to NYC program or to meet the New York State mandate, may need to update their policies, but should otherwise have minimal additional obligations under the OSHA directive.  New York State employers with at least 100 employees that are instead adhering to a full-time masking requirement, and do not already impose a weekly testing obligation for their unvaccinated employees, will have additional compliance obligations under the OSHA directive.

Keep checking for new developments

The only thing certain about these requirements is that there could be more changes in the weeks to come.  Businesses should review their policies and procedures to ensure compliance with the current mandates and continue to check dedicated COVID-19 government websites and get legal advice to ensure compliance with any new requirements.

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21

May, 2020

Working Our Way to Normalcy: A Tri-State Guide to Reopening Your Business

By Tracey Levy and Alexandra Lapes

With the goal of getting employees back to work safely while ensuring business continuity, and in compliance with local, state, and federal laws, employers should consider the following key measures to take as New York, New Jersey, and Connecticut permit more businesses to reopen during the COVID-19 pandemic.

1 – Closely follow your local reopening status and what level your business falls into within the phases of reopening

In New York State, Governor Cuomo issued the New York Forward plan, a guide to reopening businesses in New York, which outlines that businesses can reopen in phases based on each region meeting specific health metrics.  As of May 20, 2020, seven regions (Capital Region, Central New York, Finger Lakes, Mohawk Valley, North Country, Southern Tier, and Western New York) are allowed to reopen and begin phase one of reopening.  See here for a breakdown of progress on the metrics by region.

Geographic region is only the first threshold in New York, as the state also is phasing reopening by industry.  The state provides a reopen “lookup tool,” where businesses in specific industries can determine whether they are eligible to reopen.   In order to operate, employers must comply with all safety guidelines for their particular industry.  All New York employers (including essential businesses) must also, as a condition of being open:

    1. affirm that they have read and understand their obligations to operate in compliance with New York State guidance – and submit that affirmation of compliance online; and
    2. develop a business safety plan, for which the state has issued a business safety plan template. While the business safety plan does not need to be submitted to the state, it must be posted in a conspicuous location in the workplace and made available to the state Department of Health or local health or safety authorities in the event of an inspection.

The reopening lookup tool contains specific guidance for certain industries, and covered employers must also affirm compliance with those industry-specific standards.

Employers should consult the NY Forward website at www.forward.ny.gov  and applicable Executive Orders at www.governor.ny.gov/executiveorders  periodically or whenever notified of the availability of new guidance.  Employers can also visit Empire State Development’s website for frequently asked questions on how the New York Forward reopening plan impacts their business.

For New Jersey employers, on May 18, 2020, Governor Murphy announced a six-principle plan to restart New Jersey’s economy.  While New Jersey’s stay-at-home order is still in effect until further notice, the Governor announced New Jersey is in phase one of the six-principle plan but stated that a coronavirus vaccine must be widely available before New Jersey fully reopens to the “new normal.” New Jersey created a reference tool for local establishments that are open and cooperating with state guidelines, see here.

Connecticut is also taking a gradual approach, which began May 20, 2020, for those businesses that see a sustained 14-day decline in hospitalizations, have the adequate testing capacity, have a contact tracing system in place, and have procured sufficient personal protective equipment (“PPE”). Businesses eligible to reopen as of May 20 are:

  • Restaurants (outdoor only, no bar areas);
  • Offices (continue WFH where possible);
  • Museums, zoos (outdoor only);
  • Remaining retail;
  • Outdoor recreation;
  • Personal services (hair); and
  • University research.

They join already open businesses such as manufacturing, construction, real estate, utilities, essential retail, childcare, and hospitals.  Industry-specific guidelines for reopening are available here.  All businesses must self-certify online prior to opening that they are complying with safety measures.  Connecticut’s “Stay Safe, Stay Home” and all other related safety measures otherwise remain in effect, with all nonessential workers directed to work from home, and social and recreational gatherings of more than five people prohibited. To stay up-to-date on Connecticut’s guidance to reopen see here, and for answers to frequently asked questions, see here.

Additional resources are available for safety information, and guidelines at:

2 – Prepare your workplace and take necessary protective measures

All businesses should take proactive measures to ease employees’ fears of returning to work and communicate new policies, procedures, and practices specific to their workplace.  While every workplace will differ, consider the following proactive measures:

  • Prepare a workplace safety plan in compliance with federal, state, and local law. A workplace safety plan should address how the business plans to:
    • physically distance employees to ensure six feet between personnel, including limiting in-person gatherings, posting social distance markers using tape in common areas, limiting in-person meetings as much as possible and holding essential meetings in well-ventilated and well-spaced locations, limiting contact with customers, and considering shift changes or alternating lunch breaks if appropriate to the industry or business; and
    • implement protective measures for employees, including health screening before employees can return to work and subsequent daily health assessments, an exposure-response plan, maintaining adequate supply of face coverings for employees, complying with CDC hygiene and sanitation requirements with a log of who will be cleaning what and the date/time/scope of cleaning, providing hand sanitizers, soap, and paper towels to employees and those entering the workplace, and having a plan for cleaning, disinfecting, and contact tracing in the event an employee tests positive for COVID-19.
  • Communicate the safety plan to all employees. Through signage, advance communications, and ongoing training, ensure all employees and visitors in the workplace are aware of the organization’s social distance and safety protocols.

3 – Determine whether employees are eligible for modified work arrangements or accommodations, FFCRA leave, or other benefits and apply and redefine your policies fairly

Employers should review their workplace policies and update them as appropriate to address COVID-19 related personnel issues such as leave entitlements, teleworking or flexible work arrangements, the continuation of benefits, and accommodations for vulnerable employees.  In addition to the Families First Coronavirus Response Act leave, which remains in effect for covered employers until December 31, 2020, employees in New York, New Jersey, and Connecticut may also be entitled to paid sick leave for COVID-19 related reasons.  See our recent issue of Takeaways and prior HR Strategy blog postings for more information on state-specific COVID-19 leave entitlements.

When restoring employees to work, employers should develop a methodology that applies consistent and nondiscriminatory criteria to determine the rehire order.  Be sure to notify state unemployment agencies of recalled workers, whether rehired or not, as employees forfeit their eligibility for continued unemployment benefits if they decline an offer of reinstatement because they are making more from unemployment.

Some employees who fall into a high-risk category for COVID-19 may request to remain on leave or continue working remotely as a reasonable accommodation.  Employers need to give such requests due consideration, as with any other accommodation request.

4 – Check for additional guidance and shifting requirements

These remain primarily unprecedented times, and the legal landscape for employers is shifting continuously.  Checking the available government links periodically is prudent, and employers should consider getting legal advice before taking employment actions.

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12

August, 2019

New York State Amends Other HRL Discrimination Protections – Broad Protections Expanded Well Beyond Sexual Harassment

By Tracey I. Levy, Esq. and Alexandra Lapes, Esq.

Just over a year after New York enacted sweeping protections against sexual harassment, Governor Cuomo today signed into law further amendments to the New York State Human Rights Law to provide more expansive protections for employees based on any protected characteristic.

SPECIAL ALERT – IMMEDIATE ACTION REQUIRED

Distribute Policy for Harassment Prevention Training

Of most immediate concern, employers who are racing to comply with the October 9 deadline for year one of harassment prevention training should note that, effective immediately, employers are mandated to distribute a copy of their sexual harassment prevention policy at every training session, as well as at hire, both in English and in the employee’s primary language.

Other Significant Changes

In addition to the policy distribution requirement, New York State’s new law extends the Human Rights Law’s requirements to employers of any size, as well as domestic workers, and expands the law’s protections to contractors, consultants and vendors who can show the employer knew or should have known of discrimination directed at them and failed to take immediate and appropriate corrective action that was within its ability.

In addition, the new law:

  • Broadly defines unlawful harassment as subjecting an individual to inferior terms, conditions, or privileges of employment because of an individual’s protected characteristic(s);
  • Eliminates the employee’s obligation to prove that harassing conduct is severe and/or pervasive;
  • Declares that an employee need not show that a comparative individual was treated more favorably;
  • Mandates that the state’s Human Rights Law be construed liberally, regardless of how comparable federal or other states’ laws may be interpreted; and
  • Eliminates the employer’s ability to defend the complaint on the grounds that the employee failed to raise an internal complaint;
  • But it permits employers to defend a claim by proving that the harassing conduct does not rise above the level of what a reasonable person in the shoes of the plaintiff would consider petty slights or trivial inconveniences.

For most employers, these changes will not require any revisions to their existing harassment prevention policy.  However, the “sidewalks” that most policies build around the legal standards have now gotten much narrower, and the amendments collectively make it significantly easier for an employee to support a legal claim of unlawful harassment.  Procedurally, the law increases the remedies available in litigation to include punitive damages and attorneys’ fees for a prevailing plaintiff (while an employer can seek recovery of its attorneys’ fees only if it shows the case was frivolous); and extends the statute of limitations for sexual harassment claims from one to three years.  With the exception of the change in the statute of limitations (which takes effect one year after enactment of the new law), all these changes take effect within the next 60 to 180 days.

Moving beyond litigation, the new law expands the confidentiality and mandatory arbitration clause restrictions adopted last year for sexual harassment claims to now apply to any claim of harassment or discrimination under the Human Rights Law, and it voids out any confidentiality clause to the extent it precludes participation in a government agency investigation or impedes a complainant’s filing for unemployment insurance, Medicaid or other public benefits.  As of January 1, 2020, any non-disclosure provision to which a complainant affirmatively consents must include language confirming that it does not prevent the employee from speaking with law enforcement, a human rights enforcement agency, or an attorney.

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