Tag: confidentiality

New York Sexual Harassment Laws

State Budget Expands New York Sexual Harassment Laws

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:

  • Contractors
  • Subcontractors
  • Vendors
  • Consultants
  • 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.”

Public Officers

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.

Nondisclosure Agreements

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.

Model Policy

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.”

State Contractors

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.

GINA

Don’t Forget GINA

The federal Genetic Information Nondiscrimination Act (GINA) took effect in 2009. Today, most employers have still never heard of the law, which makes it illegal to discriminate against employees and applicants because of genetic information. Those employers who have heard of GINA probably don’t understand how expansive its protections are.

First, the law defines “genetic information” extremely broadly. It’s not just the results of genetic tests.

Second, the law not only directly prohibits harassment and other discrimination, but also has strict rules against acquiring genetic information.

What Is Genetic Information?

“Genetic information” includes information about:

  1. An individual’s genetic tests;
  2. The genetic tests of that individual’s family members;
  3. The manifestation of disease or disorder in family members of the individual (family medical history);
  4. An individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual; or
  5. The genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Genetic information does not include information about the sex or age of the individual, the sex or age of family members, or information about the race or ethnicity of the individual or family members that is not derived from a genetic test.

GINA also defines “family member” broadly to include:

(1) A person who is a dependent of that individual as the result of marriage, birth, adoption, or placement for adoption; or

(2) A first-degree, second-degree, third-degree, or fourth-degree relative of the individual, or of a dependent of the individual.

In other words, family member includes the employee or applicant’s parents, siblings, children, (great) (great-great) grandparents, (great) (great-great) grandchildren, (great) uncles, (great) aunts, nephews, nieces, first cousins, and first cousins once-removed. And it also includes all of those relatives of the individual’s dependents, which could include step-children and adopted children. Hence, an employee’s genetic information could include information that has absolutely no genetic relationship to them personally!

GINA Prohibits Discrimination

GINA applies to all U.S. employers with 15 or more employees. It prohibits the use of genetic information in making employment decisions. This includes hiring, firing, promotions, compensation, and other terms and conditions of employment.

The law also prohibits harassment and retaliation related to genetic information.

Rules on Acquisition of Genetic Information

GINA also generally prohibits employers from requesting, requiring, or purchasing genetic information about applicants and employees.

These rules may be the biggest trap for the unwary under this law. While most employers aren’t trying to discriminate based on genetic information (even as broadly defined here), they might be acquiring genetic information, especially family medical history.

The EEOC’s GINA regulations indicate that:

“Request” includes conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information; actively listening to third-party conversations or searching an individual’s personal effects for the purpose of obtaining genetic information; and making requests for information about an individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information.

There are several exceptions to the rule against acquiring genetic information related to:

  • Inadvertent requests
  • An employer’s voluntary wellness program
  • Family and Medical Leave Act (FMLA) certification
  • Acquisition through commercially and publicly available sources (e.g., newspapers, magazines, books)
  • Monitoring the biological effects of toxic substances in the workplace
  • Contamination testing by an employer conducting DNA analysis as a forensic laboratory

These potential exceptions have nuanced parameters and require detailed analysis under the circumstances.

Of particular note, the EEOC regulations include specific safe-harbor language for requesting medical information about the employee. Using this language will protect the employer regarding receipt of any medical information that the provider discloses:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

GINA Confidentiality Requirements

GINA requires that employers maintain any genetic information they obtain about applicants and employees in medical files that are separate from personnel files and treat the information as a confidential medical record.

This is similar to the Americans with Disabilities Act (ADA) protections for an employee’s own medical information.

Learn More

Were you already familiar with GINA? Surprised to learn how much it covers? Want to make sure you’re on top of other important employment law compliance issues?

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