The New York State Legislature has proposed, passed and implemented significant laws combating sexual harassment in the workplace. Provisions on the prevention of sexual harassment in New York workplaces affect state contracts, mandatory arbitration clauses, mandatory nondisclosure agreements and other subjects.
State Contracts – Policy and Training
All state contracts requiring competitive bidding for services performed or for goods sold must contain a statement affirming that the contracting organization or bidder has implemented a written policy addressing sexual harassment prevention in the workplace and that it provides annual training for all employees. State entities also may use the statement in contracts that do not require a competitive bid. This provision will take effect on
January 1, 2019.
Mandatory Arbitration Clauses Prohibited
Amendments to New York’s Civil Practice Laws and Rules (CPLR) will prohibit all employers in the state from requiring employees to sign contracts that mandate arbitration for sexual harassment claims. This provision will take effect on
July 11, 2018. This prohibition may be preempted by the Federal Arbitration Act, as interpreted by the U.S. Supreme Court in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011).
Mandatory Nondisclosure Agreements Prohibited
Amendments to the General Obligations Law and the CPLR will prohibit employers, their officers and other employees from including nondisclosure agreements in sexual harassment claim settlements, agreements, or other resolutions, unless the provision of confidentiality is the complainant’s preference. The complainant will have 21 days to consider a confidentiality condition. If the condition of confidentiality is the complainant’s preference after 21 days, it must be provided to and agreed upon by all parties. The complainant then will have seven additional days to revoke the agreement. This provision will take effect on
July 11, 2018.
Prevention of Sexual Harassment – Policy and Training
The New York State Department of Labor (“NYSDOL”) must consult with the state Division of Human Rights (“NYSDHR”) to create and publish a model sexual harassment prevention guide and a sexual harassment prevention policy. All employers in New York then will be required to adopt the prevention policy or to establish a policy that meets or exceeds the state prevention policy’s minimum standards. This model policy will be publicly available of the NYSDOL's and NYSDHR's website and any policy adopted by the employer must be distributed to all employees in writing. In addition, all employers in New York State will be required to provide annual anti-harassment training to all employees. The NYSDOL must consult with the NYSDHR to provide a model sexual harassment prevention training program. Employers must adopt the model or implement a training program that equals or exceeds the minimum standards provided by the model training. This provision will take effect on
October 9, 2018.
Sexual Harassment Relating to Non-Employees
It will be an unlawful discriminatory practice for an employer to permit the sexual harassment of a non-employee, independent contractor in its workplace. Current law has no explicit statutory protection for independent contractors, a loophole the new law closes. In reviewing cases related to non-employees, the extent of the employer’s control and other legal responsibility with respect to the harasser’s conduct will be considered.
This provision is effective immediately.
Reimbursement of Public Funds
Public employees who are found personally liable for intentional wrongdoing in a final judgment related to a claim of sexual harassment must reimburse the public for his or her proportionate share of the total award paid by any state or public entity to a plaintiff within 90 days of payment. The law applies to employees at every level and includes former and unpaid employees.
Coverage: Employers with employees in New York
Effective: See above for various dates
Action Required: Employers in New York should:
- Become familiar with the new obligations under the law.
- Review and revise existing policies and practices.
- NYSDOL, in consultation with the NYSDHR, will create and publish a model sexual harassment prevention guide, a model sexual harassment prevention policy and a model sexual harassment prevention training program. Employers must adopt the model or implement guides, policies and a training program that equals or exceeds the minimum standards provided by the models. New York employers should stay apprised of further developments and be prepared, if necessary, to modify their policies and/or practices and for implementing new training modules.
- We will make available the respective anti-sexual harassment guide, prevention policy, and prevention training program, once NYSDOL and NYSDHR provide additional guidance. Employers should watch for additional updates regarding the model policies and best practices.
As always, please be sure to contact your HR Business Partner if you have any questions.
*Produced in cooperation with Jackson Lewis P.C.