The Adult Survivors Act, a law recently signed by New York Governor Kathy Hochul, will go into effect on November 24 and provide a one-year window for individuals to bring certain previously time-barred sexual offense claims, regardless of when the alleged act occurred.
Previously, New York extended the statute of limitations to 20 years for adults filing civil lawsuits for certain sex offenses, but that legislation did not apply retroactively. The Adult Survivors Act (ASA) now permits any individual who was the victim of a sexual offense that occurred when they were 18 or over—but which is currently time barred—to file a timely claim between November 24, 2022, and November 24, 2023. The one-year window only applies to otherwise time-barred claims based on a sexual offense within the purview of the New York penal law, regardless of when they occurred. Sexual offenses include, but are not limited to, sexual misconduct, rape, criminal sexual acts, forcible touching, sexual abuse, and sexual assault.
While the ASA was not designed as an employment law, the scope of the law is broad, and it could potentially apply to certain employment-related claims, as it is not limited to claims solely against a party that perpetrated some form of sexual offense. While the ASA will not revive claims that have been fully resolved, such as those settled or released, the language of the ASA does purport to cover and revive claims that have been dismissed on statute of limitations grounds.
For actions revived pursuant to the ASA, potential damages depend on the cause of action being asserted. Given the nature of the ASA, such causes of action may include those provided for by the New York State Human Rights Law or state tort law. Damages, therefore, may include compensatory and punitive damages and, in some instances, attorney fees. Potential defenses to consider for employers facing an action brought pursuant to the ASA include challenges to the constitutionality of the law and, for those claims previously dismissed on timeliness grounds, arguments that the claims are barred by preclusion doctrines (i.e., res judicata).
As a best practice, employers should review their handbooks and related policies to ensure they have adequate reporting, complaint submission, and investigation procedures and confirm that these materials have been distributed to employees and that employees have options for reporting potential complaints. Relatedly, although businesses may be able to establish that they should not be subject to claims brought as a result of the ACA, employers may consider conducting a routine review of their insurance policies (if they have insurance relating to employment disputes) and any records regarding past reports of claims that were previously time barred to understand whether there are claims that could be filed against them under this law and if so, whether those claims are subject to insurance coverage.
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