You are about to leave Risk Strategies website and view the content of an external website.
You are leaving risk-strategies.com
By accessing this link, you will be leaving Risk Strategies website and entering a website hosted by another party. Please be advised that you will no longer be subject to, or under the protection of, the privacy and security policies of Risk Strategies website. We encourage you to read and evaluate the privacy and security policies of the site you are entering, which may be different than those of Risk Strategies.
The New York Adult Survivors Act (ASA) made significant changes to the time limits for civil claims involving certain sexual offenses against individuals. Because the ASA's lookback mechanism to file a claim will close on November 24, 2023, please take a few minutes to review the information below. It’s safe to assume some people will file claims at the 11th hour, so here are actions you can take to protect your organization.
The ASA focuses on civil claims seeking monetary reimbursement for emotional or physical harm resulting from sexual offenses. Plaintiffs can include any individual who has interacted with your organization: current or former employees, customers, vendors, or other stakeholders.
The law incorporates a lookback mechanism that allows reopening of claims previously dismissed due to the statute of limitations. Additionally, the ASA introduces a lifetime lookback window for civil claims (regarding sexual offenses) against employers in New York. This means that no matter when the assault or offense occurred, even if it was decades ago, victims can file a claim.
If an organization conducts business in New York State (NYS), there is a risk of exposure under NYS jurisdiction, and this may also apply to third-party claims (e.g., independent contractors and vendors).
The ASA lookback mechanism increases the likelihood of claims against your organization, including your managers and executives. This creates greater exposure for management liability insurance policies. To mitigate the impact of claims arising from ASA, carriers are adjusting underwriting practices, pricing, and policy terms, conditions, and exclusions.
Seek guidance from your legal, finance, and insurance experts on the adequacy of your management liability insurance policies, particularly the following coverages:
Discuss how you will handle any ASA-related costs above what your current insurance policies cover.
Ensuring a safe and inclusive workplace requires organizations to effectively address the risks associated with sexual offenses, sexual harassment, and gender discrimination. Here are strategies to mitigate your risks:
ASA lawsuits can implicate any organization for allegedly condoning an environment that facilitates the conditions for sexual misconduct to occur. Recent endeavors to enhance working conditions and reporting procedures can serve as evidence that an employer is striving for improvement. Underwriters, jurors, or judges may take these efforts into consideration when evaluating a case. However, these efforts do not absolve the employer of the conditions that were present at the time of the offense.
While ASA-related litigation may arise unexpectedly, there are proactive steps your organization can take to prepare:
Being thoroughly prepared is crucial in the event of litigation. Beyond that, remain vigilant and ready for any potential developments until the lookback mechanism closes on November 24th.
Want to learn more?
Connect with Ed and the Risk Strategies Management Liability team at MLPG@risk-strategies.com.
About the author
As Senior Claims Counsel at Risk Strategies Company, attorney Edward Smith helps organizations navigate complex management liability and employment practices liability claims — including those related to the New York Adult Survivors Act. In his 30-year legal career, he has served in private practice, government, and the judiciary.