New York Employment Law Update: New York Enacts Sweeping Regulations to Combat Sexual Harassment in the Workplace

April 2018

On April 12, 2018, Governor Andrew Cuomo signed into law the FY 2019 Executive Budget for the State of New York. Included in this budget are four provisions that greatly expand protections for employees (and in some cases, non-employees) who are victims of sexual harassment in the workplace. Employers need to take immediate action to ensure compliance with what Governor Cuomo has termed “[t]he nation’s most aggressive anti-sexual harassment agenda.”

What is Prohibited under the Law Today?

Effective immediately, the New York State Human Rights Law (“NYSHRL”) has been expanded to prohibit employers from “permit[ting]” sexual harassment against certain non-employees “in its workplace.” This protection represents a significant expansion of the NYSHRL, as previously only employees were protected by the NYSHRL. The new law now provides protection to any “contractor, subcontractor, vendor, consultant, or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.”

Employers now face liability if they knew or should have known that such a non-employee was subjected to sexual harassment in the workplace and the employer failed to take “immediate and appropriate corrective action.” Accordingly, employers should take action immediately in the event of non-employee sexual harassment and to ensure that existing policies concerning workplace sexual harassment are extended to the class of non-employees described above.

The Executive Budget Provides for Mandatory Sexual Harassment Policies and Trainings

Governor Cuomo’s Executive Budget also amends the New York Labor Law to require employers to adopt and implement a written sexual harassment policy that meets or exceeds minimum standards to be set by the New York Department of Labor (“DOL”), in consultation with the New York Division of Human Rights “DHR”) by October 9, 2018. The DOL and DHR will create and publish a model sexual harassment policy along with guidance discussing the model policy and minimum standards for employer-created policies.

Employers are free to use their own sexual harassment policies, so long as those policies include certain criteria required by the law, including: (1) a statement prohibiting sexual harassment; (2) examples of prohibited conduct; (3) information concerning state and federal statutory provisions concerning sexual harassment and remedies available to victims (and a notice that additional remedies may be available under local law); (4) a standard complaint form; (5) the procedure for the timely and confidential investigation of complaints; and (6) all available administrative and judicial forums in which to raise sexual harassment claims, among other requirements.

In addition to requiring the adoption of a sexual harassment prevention policy, employers are also required to provide sexual harassment prevention training to all employees on an annual basis. Once again, the DOL and DHR will develop a model sexual harassment prevention training program that employers may use to comply with the law. However, employers may use their own training as long as it meets certain minimum criteria, including: (1) that the training is interactive; (2) an explanation of sexual harassment; (3) examples of conduct constituting sexual harassment; (4) remedies available to employees under state and federal law for unlawful sexual harassment; and (5) information concerning employees’ rights of redress and all available forums for adjudicating sexual harassment complaints.

It is unclear when (or whether) the DOL and DHR will publish regulations concerning employers’ obligations under this law concerning both sexual harassment policies and trainings, or when the DOL and DHR will post the model sexual harassment prevention policy and training. As such, employers should review their sexual harassment policies and trainings, and plan to modify them to comply with the new law and any additional regulations promulgated by the DOL and DHR.

Confidential Settlements are Prohibited

Effective July 11, 2018, settlement agreements for sexual harassment complaints may no longer include nondisclosure or confidentiality provisions unless keeping the matter confidential is the complainant’s preference. Per the new law, employers will not “have the authority” to include in a settlement agreement any terms or conditions that would “prevent the disclosure of the underlying facts and circumstances” for claims where “the factual foundation… involves sexual harassment.”

However, if the complainant prefers to keep the matter confidential, non-disclosure language may be added to the settlement agreement. The complainant has 21 days to consider whether or not to accept the confidentiality language, and has seven days to revoke his or her acceptance. As such, the decision to keep sexual harassment complaints and settlements confidential will now rest with the employee alone, and not the employer.

Sexual Harassment Claims May Not be Subject to Mandatory Arbitration

The Executive Budget also amends the Civil Practice Law and Rules to ban contractual provisions providing for mandatory arbitration of claims or allegations of sexual harassment, effective July 11, 2018. While, as of the effective date, a clause relating to claims of sexual harassment will be null and void, the amendment to the CPLR expressly provides that the inclusion of such a “prohibited clause” does not impair the enforceability of any other provision of the contract.

While it remains to be seen whether the Federal Arbitration Act will preclude enforcement of this amendment, employers should nevertheless examine their current arbitration agreements that may extend to sexual harassment claims and consult with counsel to ensure that their current arbitration clauses are enforceable in light of this amendment to the CPLR.

Future Regulations for New York City Employers

In addition to the Executive Budget, employers with operations in New York City should also be aware of the Stop Sexual Harassment in NYC Act (the “Act”), which was passed by the NYC City Council on April 11, 2018 and is currently awaiting Mayor de Blasio’s signature. This Act includes several provisions that will impact private employers, and employers should take steps now to ensure that they are ready to comply with the Act once it is signed into law.

Several provisions are set to take effect immediately upon Mayor de Blasio’s signature. Those provisions include: (1) extending the statute of limitations for filing an administrative charge alleging gender-based harassment claims under the New York City Human Rights Law (“NYCHRL”) with the New York City Commission on Human Rights from one to three years; (2) amending the NYCHRL’s prohibition on gender-based harassment to apply to all employers, as opposed to only employers with four or more employees; and (3) clarifying that sexual harassment is a form of discrimination under the NYCHRL.

In addition to the above provisions, effective April 1, 2019, all private employers with 15 or more employees will be required to conduct annual sexual harassment prevention trainings for all employees and interns. Further, all new employees and interns expected to work more than 80 hours in a calendar year must complete sexual harassment prevention training within 90 days of hire, and employers will be required to keep training records and signed acknowledgments from employees for three years. This provision also requires the NYCHRL to create and promulgate training tools for employer trainings, although it is unclear when the NYCHRL will provide such tools.

Finally, the Act requires the NYCHRL to create a new sexual harassment prevention rights and responsibilities poster and mandates that employers display this poster in a conspicuous place and provide such information to new employees at the time of hire. This provision will take effect 120 days after Mayor de Blasio signs the Act.

For more information on this issue or other employment matters, please contact:

Carol M. Goodman at [email protected] or +1 212 592 1465

© 2018 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.