On March 1, 2022, the New York State Senate passed a suite of landmark employment legislation. Though several of the bills still need to be passed by the State Assembly – and, of course, ultimately signed into law by Governor Kathy Hochul – Empire State employers should nevertheless review the measures now so they will be prepared if and when the bills become law. Below is a high-level summary of the key bills that were passed last week:

• Additional limitations on non-disclosure clauses – Senate Bill S.738 would invalidate any releases of claims – which are most typically included in separation and settlement agreements – where (i) the employee is required to pay liquidated (i.e., contractually pre-determined) damages, or is required to forfeit all or part of the separation/settlement payment, if they violate the agreement’s confidentiality or non-disparagement provisions; or (ii) the agreement contains an affirmative statement, assertion, or disclaimer that the employee was not subjected to discrimination, harassment, or retaliation.
• Unenforceability of “no rehire” clauses – If enacted, Senate Bill S.766 would invalidate any releases of claims where the agreement at issue also includes a no rehire clause. Perhaps most critically, if a release is rendered unenforceable under this proposed law, the employer would still remain bound by all other provisions of the settlement agreement, including the obligation to provide the full separation or settlement payment to the employee as set forth in the agreement.
• Expanded definition of retaliation under the NYSHRL – Senate Bill S.5870 proposes an expansion of the New York State Human Rights Law (NYSHRL) to prohibit retaliation in the form of disclosing an employee’s personnel files because the employee opposed any practices forbidden under the NYSHRL, filed a complaint, or testified or assisted in any proceeding under the NYSHRL, unless such disclosure is made in the course of commencing or responding to a complaint in any proceeding under the NYSHRL or any other civil or criminal action or other judicial or administrative proceeding as permitted by law. According to the bill’s sponsor, “retaliation frequently appears in the form of a leaking of personnel files with the intent to disparage or discredit a victim or witness of discrimination in the workplace. This bill would clarify that the release of these files because of the employee’s filing of a complaint or cooperation with an investigation counts as retaliation and is completely prohibited under the Human Rights Law, except where such release is necessary to comply with an investigation or an administrative or judicial proceeding.” Further, the proposed amendment provides power to the Attorney General to commence an action or proceeding if, upon information or belief, the Attorney General is of the opinion that an employer has been, is, or is about to retaliate against an employee. Under existing law, the only enforcement mechanism is a private right of action.
• Proposed extension of the statute of limitations under the NYSHRL – Two bills seek to drastically expand the statute of limitations under the NYSHRL. Senate Bill S.566A proposes modifying the statute of limitations to report discrimination to the New York State Division of Human Rights from one year to three years. Senate Bill S.849A proposes extending the statute of limitations for claims based upon unlawful discriminatory practice in employment from three to six years.

We will continue to monitor these bills and provide updates on their status as they make their way through the legislature.