On April 12, 2018, Governor Andrew Cuomo signed the New York state budget into law.  Beyond the dollars and cents associated with a typical budget bill, the legislation included new requirements for private and public employers to address sexual harassment in the workplace. While effective dates for the various measures are staggered over the next year, employers should start preparing now to comply with each provision:

• Effective immediately: The budget bill amended the New York State Human Rights Law to prohibit harassment against “non-employees” who provide services under a contract, including contractors, vendors, and consultants. If an employer knew or should have known that a protected “non-employee” was sexually harassed at its office or workplace, the employer may be liable if it does not take appropriate action.
• Effective July 9, 2018: Employers may include nondisclosure/confidentiality clauses in settlement or release agreements dealing with sexual harassment claims only if the complaining party requests such a clause. Additionally, settlement and release agreements must not contain mandatory arbitration clauses for the resolution of harassment claims.
• Effective October 9, 2018: All employers must have a written anti-sexual harassment prevention policy, and also must provide annual anti-harassment training.  The New York State Department of Labor (NYDOL) and the New York Division of Human Rights are drafting model policies, and employers must base their own policies and trainings on the state-drafted models. Employers must also provide a written copy of the policy to all employees annually.

Employers should act quickly to ensure they comply

A new I-9 Form has been issued by the United States Citizenship and Immigration Services (USCIS).

Revisions include the following:

• The Office of Special Counsel for Immigration-Related Unfair Employment Practices is now known as the Immigrant and Employee Rights (IER) Section of the Department of Justice’s Civil Rights Division.  This section is responsible for enforcing the anti-discrimination provisions governing Form I-9 and the E-Verify database.
• The List of Acceptable Documents now includes the Consular Report of Birth Abroad (FS-240), which is issued by the Department of State to employees born overseas to a US citizen parent.  This document is now included in List C, #2, alongside the certifications of report of birth issued by the Department of State (FS-545 and DS-1350).
• USCIS has amended language in the I-9 instructions which directs new hires to complete and sign Section 1 “no later than the first day of employment,” rather than “no later than the end of the first day of employment.”  This effectively eliminates a specific time by which Section 1 must be completed; consequently, employers should ensure that Section 1 is completed as soon as an employee begins work for pay.

The revisions are relatively minor, but it is vital that beginning September 18, 2017, all employers use the revised form to verify employee eligibility.  Form I-9 Paperwork Violations can result in fines ranging from $216 to $2,126.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their Form

Employers go to great lengths and expense to reduce their potential exposure to employment-related claims.  Most employers implement employment policies to address the ever-growing myriad of federal, state, and local employment laws, regularly conduct employee EEO training, hire qualified human resources professionals and in-house attorneys with expertise in employment law, and regularly seek advice and assistance from outside counsel concerning these prophylactic measures.  The article addresses a fast, simple, and inexpensive way to substantially reduce exposure to certain types of employment-related claims through the inclusion of an express waiver (“Waiver”) in a form employment application or other document signed by applicants or employees.  The Waiver contractually reduces to six (6) months the time period within which certain types of employment-related claims must be filed and waives any statute of limitations to the contrary, thereby significantly reducing the number of timely-filed claims and, consequently, the employer’s potential exposure.  Although waivers can vary by jurisdiction, the following include example of things to bear in mind.

Which Claims Should Be Included in the Waiver?

The employment-related claims that subject employers to the most potential exposure are those that carry lengthy limitations periods and no damages caps.  For example, 42 U.S.C. § 1981 (“Section 1981”), which prohibits race discrimination and retaliation, has a four (4)-year statute of limitations and does not cap emotional distress or punitive damages.[1]  State common law also provides a source for employment-related breach of contract and tort claims, such as defamation, intentional infliction of emotional distress, negligent hiring /