New York State’s recent legislative changes, particularly the enactment of S4516, represent a significant stride forward in protecting employee rights against discrimination, harassment, and retaliation. As employment attorneys advocating for employees, this development is crucial in leveling the playing field for workers facing unjust workplace practices.

The amended Section 5-336, an integral part of the #MeToo movement, primarily targets the overuse of confidentiality clauses in release agreements. Initially focused on sexual harassment, its scope has broadened to include various forms of discrimination. S4516 further enhances these protections, encompassing discriminatory harassment and retaliation as well.

A notable aspect of these amendments is the nuanced approach to nondisclosure provisions. While maintaining the general prohibition of these clauses, it respects the employee’s preference for confidentiality. Importantly, it grants employees a 21-day period to consider such agreements and a 7-day window to revoke their decision, with the 21 days now being waivable.

However, a critical point is that S4516 does not modify Section 5003-B of the CPLR. While the 21-day consideration for nondisclosure provisions can be waived before litigation, it remains non-waivable in court cases.

Most significantly, S4516 introduces restrictions on the enforceability of release agreements involving discrimination claims. These agreements cannot include liquidated damages for violating nondisclosure or nondisparagement clauses, forfeiture provisions for similar violations, or assertions by the employee denying the experience of discrimination, harassment, or retaliation. This change ensures that employees are not unfairly penalized for speaking out against workplace injustices.

As amended, the application scope of Section 5-336 remains ambiguous. While it covers resolutions of asserted claims, its broader language in the new Section 5-336(3) could extend it to both pre-claim and post-claim agreements.

This legislative change is a victory for employee rights, providing less interference in securing a just remedy in discrimination claims. For those who have been the target of discrimination or harassment at work, working with a qualified and knowledgeable attorney is often the best action for effectively addressing these issues. At Risman & Risman, we offer legal assistance for those facing discrimination and harassment in the workplace. Our team can provide you with specialized legal services for your issues. Call us today at 212-233-6400 to schedule a free initial consultation with our team.

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