Several members of the New York City Council have introduced a bill that would amend the City’s Human Rights Law to permit employees to waive a Human Rights Law claim only where the waiver is “knowing and voluntary.” Such a statutory (rather than common law) knowing and voluntary requirement currently only applies to waivers of Federal age discrimination claims. The bill aims to capture not just the waiver of age discrimination claims under the City Human Rights Law, but also any other type of discrimination claim an employee may assert under the City law (e.g. race, gender, national origin, sexual orientation, etc.).
In order to effectuate a knowing and voluntary waiver, the bill would require employers to satisfy the same eight factors required to satisfy the Federal age discrimination waiver test. Those factors are as follows:
- the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate;
- the waiver specifically refers to rights or claims arising under the City Human Rights Law;
- the individual does not waive rights or claims that may arise after the date the waiver is executed;
- the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled;
- the individual is advised in writing to consult with an attorney prior to executing the agreement;
- (a) the individual is given a period of at least 21 days within which to consider the agreement; or (b) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;
- the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired;
- if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in paragraph (vi)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as to (a) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and (b) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program.
We will continue to track the progress of this bill and keep you posted.