By Megan Collelo
When Gov. Andrew Cuomo signed the New York State Budget Bill on April 12, he enacted more than requirements for the state’s spending for the fiscal year.
Additionally, the bill enacted new requirements for all New York employers to combat sexual harassment. Here are five takeaways to help local business owners make dollars and cents out of the new requirements:
1. Companies submitting competitive bids to the state must certify that they have a sexual harassment policy in place and conduct annual sexual harassment training.
Effective Jan. 1, 2019, when competitive bidding is required by law, the bid will require the submitting entity to certify, under penalty of perjury, that the bidder has implemented a policy to address sexual harassment prevention and that the bidder conducts annual sexual harassment prevention training for all of its employees.
2. As of July 11, 2018, employers can no longer require mandatory arbitration of sexual harassment claims.
Check your employment contracts. If you generally include an arbitration clause, that clause is null and void if it requires the contracting individual to resolve an allegation or claim of sexual harassment before an arbitrator, rather than through the court system.
3. Nondisclosure agreements are prohibited, unless they are at the preference of the plaintiff.
Effective July 11, 2018, nondisclosure agreements are prohibited in any agreement to resolve a claim or cause of action for sexual harassment, unless the plaintiff prefers to include this condition of confidentiality. The confidentiality condition must be provided to all parties and the plaintiff must have 21 days to consider this term of the agreement. If the plaintiff opts to include such a provision, he or she must be given at least seven days after execution to revoke, and the agreement is only effective once the seven-day revocation period has passed.
4. Beginning Oct. 9, 2018, all employers must have a policy addressing the prevention of sexual harassment and conduct annual training on sexual harassment prevention.
The Department of Labor, in consultation with the state Division of Human Rights, will create and publish a model sexual harassment prevention policy and a model sexual harassment prevention training program. The policy and training adopted and utilized by an employer must meet or exceed the state’s requirements. Although we have not yet seen the Department of Labor and Division of Human Rights’ models, here is what we know so far:
An employer’s sexual harassment prevention policy must:
• Prohibit sexual harassment (consistent with the State’s guidance) and provide examples of prohibited conduct;
• Include references to the federal and state statutory provisions regarding sexual harassment, the remedies available to victims, and a statement that there may be applicable local laws;
• Include a standard complaint form;
• Outline a procedure for the timely and confidential investigation of all complaints, including provisions for due process for all parties;
• Inform employees of their rights of redress and available judicial and administrative forums for adjudicating complaints;
• Clearly state that sexual harassment constitutes employee misconduct and that disciplinary action will be imposed on both the individual who engages in the harassment and any supervisor or manager who knowingly allows such behavior to continue; and
• Notify employees that retaliation against any person who reports, testifies, or assists in any proceeding is unlawful.
An employer’s sexual harassment prevention training must:
• Include an explanation of sexual harassment consistent with forthcoming guidance from the Department of Labor and Division of Human Rights;
• Detail examples of conduct that constitutes sexual harassment;
• Provide employees with information regarding the federal and state statutory provisions dealing with sexual harassment and the remedies available to victims of sexual harassment; and
• Inform employees of their rights of redress and all available forums for adjudicating complaints.
5. Employers may be held liable for sexual harassment experienced by non-employees.
The state Human Rights Law was amended effective April 12, 2018 to include a provision that an employer may be held liable if it permits sexual harassment of non-employees, i.e., contractors, subcontractors, vendors, or consultants performing work for the employer in the workplace if the employer knew or should have known about the sexual harassment and failed to take appropriate action.
Moving forward, employers should ensure that they keep abreast of the Department of Labor and Division of Human Rights’ forthcoming guidance regarding sexual harassment prevention policies and training, and ensure that their employment contracts and settlement agreements are thoroughly reviewed by counsel.
Collelo is an attorney with Bond, Schoeneck & King who represents and advises employers in all aspects of labor and employment law.