On August 12, 2019, Governor Andrew Cuomo signed legislation that further strengthens New York’s existing workplace harassment and discrimination protections.

Until now, workplace protections applied only to employees. However, in recognition that employers often characterize workers differently, the legislation expands workplace protections to independent contractors, subcontractors, vendors and consultants. In addition, the legislation requires employers to adopt sexual harassment prevention policies and conduct annual, interactive sexual harassment prevention training for all employees.

Summary of the Laws:

1. Covers all employers in the state.

   Previously, except with respect to alleged sexual harassment, an employer with fewer than four employees was not covered by the New York State Human Rights Law (NYSHRL). Now, every employer within the state of New York is covered by the NYSHRL

2. Expands protections against all forms of discriminatory harassment based on all protected categories.

   In addition to protection from sexual harassment, non-employees, are now protected from all forms of unlawful discrimination where the employer knew or should have known the non-employee was subjected to unlawful discrimination in the workplace and failed to take immediate and appropriate corrective action.

3. Eliminates restriction that harassment be “severe or pervasive” in order to be legally actionable.

   The burden of proof for harassment claims has been significantly lowered in New York State. Specifically, the legislation removes the requirement that complainants prove “severe or pervasive” conduct that altered their conditions of employment and created a hostile and abusive work environment.

   Now, employers must address all forms of harassment in the workplace, including isolated instances. Thus, any harassment based on a protected class is unlawful “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims.” This definition of harassment applies to all protected characteristics including, but not limited to, age, race, creed, color, national origin, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, and sexual harassment.

4. Eliminates the Faragher/Ellerth Affirmative Defense

   The legislation eliminates the Faragher/Ellerthaffirmative defense, which is commonly used by employers to dismiss claims of sexual harassment. The defense was articulated in two U.S. Supreme Court cases regarding workplace harassment. Those rulings, handed down more than two decades ago, held that an employer is not liable for sexual harassment if it can demonstrate that: (a) the employer exercised reasonable care, such as maintaining a complaint procedure, to prevent and correct promptly harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Now, under the new law, an employee’s failure to invoke his or her employer’s internal complaint procedure will not shield the employer from liability. This is important because victims of harassment are often afraid make a complaint for fear of retaliation.

5. Allows punitive damages and mandates attorneys’ fees in employment discrimination cases.

   The award of attorneys’ fees to a prevailing plaintiff in an employment discrimination, harassment or retaliation case is now mandatory, not discretionary. Conversely, attorneys’ fees are only available to prevailing defendants if the claims brought against them are frivolous. Also, a prevailing plaintiff may be awarded punitive damages in a discrimination, harassment and/or retaliation case against private employers.

6. Expands the statute of limitations for Human Rights complaints.

   As of August 12, 2020, the statute of limitations to file a sexual harassment administrative complaint with the New York State Division of Human Rights is extended from one year to three years, which is the same amount of time an individual has to pursue a claim in court. It will remain one year for all other types of claims.

7. Requires employers to provide employees with sexual harassment policies and sexual harassment training materials in English and employee’s primary language.

   Employers will be required to provide employees with their sexual harassment policies and sexual harassment training materials in English and in each employee’s primary language, both at the time of hire and during each annual sexual harassment prevention training.

The remaining amendments to the New York States Harassment and Discrimination Laws will be outlined in our next blog post.

**Note: All the changes above have already taken effect, except: #1 will become effective on February 8, 2020; and #6 will become effective on August 12, 2020.

On August 6, 2019, New Jersey passed one of the toughest wage theft statutes in the country. This amended statute, the New Jersey Wage Theft Act, emphasizes the importance of worker protection. The statute not only raises the level of protection for retaliation claims, but also increases wage theft penalties.

First and foremost, the Wage Theft Act greatly expands the time period in which an employee may bring a claim for unpaid wages, unlawful discharge and other retaliatory acts from two years to six years. Furthermore, remedies for employees now include reinstatement, corrective action by the employer and, most importantly, payment of lost wages plus 200% of the lost wages amount as liquidated damages. This essentially establishes threefold damages for wage theft violations.

Furthermore, with regards to maintaining proper records, the Wage Theft Act states that employers that fail to produce the records required under the wage and hour laws face a rebuttable presumption that allegations concerning the period of time and number of hours relevant to an asserted violation are true.

The Wage Theft Act also expanded the liability of joint and successor employers. There is a now rebuttable presumption that a successor entity is liable for the violations of the predecessor if only two of the following factors are shown:

Lastly, the Wage Theft Act also adds criminal penalties onto the civil/monetary penalties. It increases the penalties for a first offense from up to $100 to between $500 and $1,000, 10 to 90 days’ imprisonment or both. For second and subsequent offenses, the penalties increase to between $1,000 and $2,000, 10 to 100 days imprisonment or both.

The majority of the law went into effect on August 6, except for some of the criminal penalties which went into effect on November 1, 2019.