On April 12, New York Governor Andrew Cuomo signed into law a budget bill that includes significant changes in the obligations of New York employers related to sexual harassment (the “Anti-Harassment Law”). According to the Governor, the Anti-Harassment Law provides the “strongest and most comprehensive anti-sexual harassment protections in the nation,” as part of a hefty $168 billion budget deal for the 2019 fiscal year (which started April 1, 2018). The Anti-Harassment Law is consistent with a recent push by states and localities to expand employee protections against unlawful harassment in response to the #MeToo movement.
The Anti-Harassment Law includes both immediate and ongoing implications. Here are some of the highlights:
As a result of enactment of the Anti-Harassment Law, the New York State Human Rights law now extends protections to certain non-employees, including contractors, subcontractors, vendors, consultants, and other persons providing services pursuant to a contract. This means that employers may now be held liable for sexual harassment claims brought by non-employees.
Effective during the Next Year:
Effective July 11, 2018, New York employers will be prohibited from using nondisclosure clauses in sexual harassment settlements unless the complainant prefers the settlement to be confidential. New York employers will also be prohibited from implementing mandatory arbitration clauses for workplace sexual harassment claims.
Effective October 9, 2018, employers must distribute written anti-harassment policies in the workplace and must conduct annual anti-harassment training for all employees.
Policies must include:
(i) examples of prohibited conduct that would constitute unlawful sexual harassment;
(ii) information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
(iii) a standard complaint form;
(iv) a procedure for the timely and confidential investigation of complaints;
(v) information on employee rights of redress and available forums;
(vi) a statement that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior; and
(vii) a statement that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
Training must include:
(i) an explanation of sexual harassment consistent with guidance issued by the state’s department of labor (“DOL”);
(ii) examples of conduct that would constitute unlawful sexual harassment;
(iii) information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment; and
(iv) information concerning employees’ rights of redress and available forums for complaints.
Effective January 1, 2019, bids on certain state contracts must contain language affirming that the bidding entity has implemented a written policy addressing sexual harassment in the workplace and that it provides annual sexual harassment prevention training to all of its employees.
New York employers should immediately evaluate and begin incorporating the Anti-Harassment Law’s requirements into their workplace policies and practices. Please keep an eye out for the DOL’s model policy and training program, which we hope will be coming soon. When the model policy and program are issued, employers should ensure that their current policies and programs measure up to it and implement modifications as needed.