On April 12, 2018, New York Governor Andrew Cuomo signed State Budget legislation that includes several provisions aimed at workplace sexual harassment. Some of the items included will require additional clarification through agency guidance and regulations. But here’s an initial overview of how New York sexual harassment laws will change.
Some new aspects of New York sexual harassment law took effect immediately. Others will become effective later. Here they are in the order that they take effect.
Protection of Non-Employees
Before April 12, 2018, the New York Human Rights Law only protected employees from sexual harassment. Effective immediately, it is also unlawful for employers to permit sexual harassment of non-employees in their workplaces.
In addition to employees, the law now protects:
- Other persons providing services under a contract in the workplace
- Employees of the above
An employer may be liable for sexual harassment against these individuals if it knew or should have known that the individual was subjected to sexual harassment in its workplace and failed to take “immediate and appropriate corrective action.”
The law does add that: “In reviewing such cases involving non-employees, the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the harasser shall be considered.”
Effectively immediately, employees and officers of public entities (including the State, its agencies, local governments, and school districts) who are found personally liable for intentional wrongdoing related to sexual harassment must now reimburse their employer if it pays the judgment to a victim.
If the employee does not repay their public employer within 90 days, the employer may withhold compensation from the employee’s pay. If the person is no longer employed by the public entity, the employer may pursue collection through the courts.
Mandatory Arbitration Clauses
Beginning July 11, 2018, New York law will prohibit “any clause or provision in any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.”
This law defines a “mandatory arbitration clause” as “a term or provision contained in a written contract which requires the parties to such contract to submit any matter thereafter arising under such contract to arbitration prior to the commencement of any legal action to enforce the provisions of such contract and which also further provides language to the effect that the facts found or determination made by the arbitrator or panel of arbitrators in its application to a party alleging an unlawful discriminatory practice based on sexual harassment shall be final and not subject to independent court review.”
The law contains a telling exception. This prohibition applies “except where inconsistent with federal law”. That language is probably unnecessary, as the State law could not trump federal law anyway. But, it shows the Legislature’s recognition that federal law, including the Federal Arbitration Act, broadly favors arbitration. Thus, it remains to be seen whether this state restriction will be enforceable.
The law also allows that mandatory arbitration clauses contained in collective bargaining agreements are not prohibited.
Also as of July 11, 2018, employers may no longer include a provision in any settlement document resolving any claim involving sexual harassment that “would prevent the disclosure of the underlying facts and circumstances to the claim.”
The law provides an exception where “the condition of confidentiality is the plaintiff’s preference.” In that case, the plaintiff must have 21 days to consider the nondisclosure terms. Then, after 21 days, the parties can agree to the provision in a written agreement signed by all parties. But the plaintiff still must have at least 7 days to revoke the agreement after signing it.
New York Sexual Harassment Prevention
For the first time, New York will require all employers to maintain sexual harassment prevention policies and provide training for employees. These requirements take effect October 9, 2018.
A new provision of the New York State Labor Law requires the Department of Labor (DOL) to consult with the Division of Human Rights and publish a “model sexual harassment prevention guidance document and sexual harassment prevention policy.”
The model New York sexual harassment prevention policy must:
- Prohibit sexual harassment and provide examples of prohibited conduct;
- Include information about federal, state, and local sexual harassment laws;
- Include a standard complaint form;
- Identify a procedure for “timely and confidential investigation of complaints and ensure due process for all parties”;
- Inform employees of their rights of redress and all available administrative and judicial forums for adjudicating sexual harassment complaints;
- State that sexual harassment is a form of employee misconduct with sanctions for both individuals engaging in it and supervisors and managers who allow it to continue; and
- Prohibit retaliation against individuals who complain of sexual harassment or testify or assist in any proceeding.
Once the model policy is available, all New York employers must adopt it or one that “equals or exceeds the minimum standards provided by such model”. Employers must provide their policy to all employees in writing.
Model Training Program
The DOL must also consult with the Division of Human Rights and produce a model sexual harassment training program.
The model New York sexual harassment prevention training program must be “interactive” and include:
- An explanation of sexual harassment;
- Examples of conduct that would constitute unlawful sexual harassment;
- Information about federal and state sexual harassment laws and remedies;
- Information about employees’ rights of redress and available forums; and
- Additional responsibilities regarding supervisors.
Every New York employer will have to provide sexual harassment prevention training to all employees annually. Employers may use either the model training program or one that “equals or exceeds the minimum standards provided by such model training.”
Starting January 1, 2019, any entity seeking a contract with the State of New York through competitive bidding must certify that they have instituted a written policy on sexual harassment prevention. They must further certify that they provide annual sexual harassment training to all employees.
Stay Tuned for More on These New York Sexual Harassment Laws
Since most of these New York sexual harassment law changes don’t take effect immediately, employers have some time to prepare. For many, the biggest project will be complying with the new policy and training requirements. Even employers who already provide anti-harassment training to their employees will have to review the model policies and training programs to make sure they meet the minimum standards.
One thing you can do now is sign up for my email newsletter to make sure you get my updates on these important topics. This will include an announcement about a free webinar once the State issues the model New York sexual harassment materials.