As of April 12, 2018, New York imposed new heightened obligations on employers to prevent sexual harassment of employees and certain non-employees in the workplace. The measure amends several existing laws to create a new scheme of requirements with respect to workplace sexual harassment. The amendments require employers to enact written sexual harassment policies, conduct annual sexual harassment prevention training for all employees, prohibit mandatory pre-dispute arbitration clauses relating to sexual harassment complaints, prohibit nondisclosure agreements for sexual harassment claims, and expand employer liability to sexual harassment claims by non-employees.
I. Sexual Harassment Prevention Policies and Trainings
While it has always been a best practice, employers are now required to implement written sexual harassment prevention polices, provide those policies to their employees, and ensure all employees are trained on sexual harassment prevention on an annual basis. The New York State Department of Labor (“DOL”), in consultation with the New York State Division of Human Rights ("DHR"), will be creating and publishing a sexual harassment guidance document and a model sexual harassment prevention policy that employers may use in adopting their own policy.
Under the amendments, the minimum mandatory provisions that must be included in the employer’s sexual harassment prevention policy are as follows:
Prohibit sexual harassment consistent with guidance issued by the DOL;
Provide examples of prohibited conduct that would constitute unlawful sexual harassment;
Include information concerning 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;
Include a standard complaint form;
Include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints (administratively and judicially);
State clearly that sexual harassment is a form of employee misconduct and that discipline will be imposed against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
For employers that contract with New York State, every bid submitted to the state or any public department or agency of the state must contain a written statement by the bidder that the bidder has and has implemented such a sexual harassment policy and provides the requisite training. This specific provision will take effect on January 1, 2019.
All employers will be required to adopt and distribute a policy by October 9, 2018.
II. Prohibition of Mandatory Pre-Dispute Arbitration Clauses
Employers with four or more employees will be prohibited from incorporating mandatory pre-dispute arbitration clauses in written employment contracts requiring the resolution of allegations or claims of sexual harassment. This prohibition applies only to contracts entered into after the effective date of the law. Employers may continue to use mandatory pre-dispute arbitration clauses for all other claims unrelated to sexual harassment as long as the clauses are agreed to by the parties and are in accordance with applicable law.
If a contract entered into after the effective date contains one of these prohibited provisions, that provision will be rendered null and void without affecting the enforceability of any other provision of the contract. If there is a conflict between any collective bargaining agreement and this provision of the law, the agreement will control.
This provision will take effect on July 11, 2018.
III. Prohibition of Nondisclosure Agreements (“NDA”)
The law also bans employers from having nondisclosure clauses in settlements, agreements, or any other resolution of sexual harassment claims, unless the condition of confidentiality is the complainant’s preference. Any such term or condition, if requested by complainant to be included in the agreement, must be provided to all parties, and the complainant will have up to twenty-one (21) days to consider the agreement, plus seven (7) additional days after the execution of that agreement within which to revoke his or her acceptance.
IV. Protections for “Non-Employees”
The amendments expand sexual harassment protections to non-employees. Employers may now be held liable to contractors, subcontractors, vendors, consultants, or other non-employees providing services to the employer with respect to sexual harassment if the employer, its agents, or supervisors knew (or should have known) that the non-employee was subject to sexual harassment in the workplace, and the employer failed to take immediate corrective action.
This provision became effective immediately on April 12, 2018.
What Should Employers Be Doing Now?
Review, when available, the New York State Department of Labor’s model policies and training programs on sexual harassment prevention.
Review and revise current policies regarding sexual harassment in the workplace to include references to specific non-employees providing services to the employer.
Prepare and provide sexual harassment training for employees and management on an annual basis.
Review current arbitration agreements and NDA’s in place with employees.
Revise settlement agreements, including nondisclosure provisions pertaining to sexual harassment claims, to provide for the applicable review and revocation period.
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