Tag: harassment training

workplace discrimination

Governor Approves NY Workplace Discrimination Expansion

In June, the New York State Legislature passed a series of bills that would make it easier for employees to sue their employers for discrimination. On August 12, 2019, Governor Cuomo signed the remainder of this legislation into law. Among other things, the amendments New York’s workplace discrimination laws will cover more employers and workers, lower the threshold for unlawful harassment, and add new penalties.

For more details on the new laws, read our initial discussion in New York Employment Discrimination Law Now Covers Everyone.

Or watch a recording of our webinar discussing the amendments.

Below is a quick summary of the changes, including when they will take effect.

All Employers Covered

As of February 8, 2020, the New York Human Rights Law will prohibit all employers from engaging in employment discrimination. Before, most aspects of the law only applied to employers with at least 4 employees.

More Workers Covered

As of October 11, 2019, workplace discrimination protections will extend to more non-employees. This will include contractors, vendors, and consultants working in an employer’s workplace.

Lower Harassment Threshold

Beginning October 11, 2019, harassment will not have to be “severe or pervasive” to be unlawful. The lower standard will make it much easier for employees to prevail on harassment claims.

In addition, the amendment dictates that employees don’t have to show a similarly situated employee who was treated better or that the employee previously complained about harassment without effective action taken by the employer.

Additional Penalties for Employment Discrimination

Also beginning October 11, 2019, successful plaintiffs can recover their attorneys’ fees and punitive damages from employers. Thus, workplace discrimination will become even more costly for employers.

Limitations on Confidentiality Provisions

As of October 11, 2019, employers will no longer be able to request non-disclosure language in settlement agreements that cover employment discrimination claims under New York law. This will be a significant change from current practice.

Confidentiality provisions will only be possible under strict parameters where the employee prefers the protection.

The amendments also prohibit mandatory arbitration of employment discrimination claims. But it’s questionable whether this amendment is legal in light of contradictory federal law.

Sexual Harassment Training

All employers already must provide annual sexual harassment training. The first training must occur by October 9, 2019. But these amendments add additional requirements.

These amendments took effect immediately on August 12, 2019. All employers must now provide employees with a copy of their sexual harassment policy and the information presented during the training. Employees whose primary language is not English must receive these documents in their primary language if model documents are available from the state. This presently includes Bengali, Chinese, Haitian Creole, Italian, Korean, Polish, Russian, and Spanish.

For more on New York’s sexual harassment training requirements, check out our timely update webinar.

More Time to File Sexual Harassment Claims

Beginning August 12, 2020, workers will have three years to file sexual harassment claims with the New York State Division of Human Rights. Until then, they only have one year to file with the administrative agency.

New York Employers Must Act Now to Prevent Workplace Discrimination

Though some of these provisions don’t take effect immediately, all will soon enough. Employers must review the new standards and requirements to ensure future compliance. You can’t prevent all employment discrimination or harassment. But you can take additional measures to try to prevent it and avoid liability.

With some new requirements already in place for sexual harassment training, employers should take such training extremely seriously. You should also seriously consider anti-harassment training regarding all protected categories.

 

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NY Sexual Harassment Webinar

NY Sexual Harassment (Webinar Recap)

On October 2, 2018, I presented a complimentary webinar called “NY Sexual Harassment.” For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • New York Laws Affecting All Employers
  • Sexual Harassment Policies
  • Mandatory Training Programs

Every New York employer must meet new legal requirements beginning October 9, 2018. This webinar explains the requirements, detailing recent New York State compliance guidance.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “NY Sexual Harassment”

New state laws affect every employer in New York. Even if you only have one employee. Make sure you know what you must do right away to be in compliance.

First, you must have a written sexual harassment policy. Many employers already had these before the new laws. But your old policy probably doesn’t meet the new standards. Learn your options under the new law.

Second, you have to train every employee about sexual harassment issues every year! You have until October 9, 2019, to complete the first round of training. But it’s not too early to start planning for how you will meet this new requirement.

This webinar discusses both topics and points you the resources you need to come into compliance.

Don’t Miss My Future Webinars!

Click here to sign up for my email newsletter to be among the first to know when registration is open for upcoming programs!

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.