By: Jon Avidor and Kristen Kennedy
On April 12, 2018, Andrew Cuomo, the governor of New York, signed into law the most comprehensive anti-sexual harassment legislation in the country. Following a public comment period, on October 1, the New York State Department of Labor issued a final model sexual harassment policy, trainings, and guidance for employers to comply with the new legislation, which went into effect on October 9. All employers in New York will now be required to comply with a list of requirements which includes the following:
- Adopt the state’s model sexual harassment policy and trainings, or establish a sexual harassment prevention policy that meets or exceeds the standard set by Section 201-G of the New York State Labor Law
- Provide employees with a complaint form for reporting sexual harassment
- Make the sexual harassment policy available to all employees in writing or electronically, in a language they understand, and make it publicly available
- Hold annual sexual harassment prevention training, which must be interactive and meet the standards established by Section 201-G, for all employees by October 9, 2019; new employees should ideally be trained “as soon as possible”
- State contractors will be required to affirm that they have an anti-sexual harassment policy in place and that all employees have been trained in sexual harassment prevention
Additionally, Section 296-d of the New York State Human Rights Law now protects non-employees such as contractors, subcontractors, vendors, consultants or others providing services from sexual harassment in the workplace. Employers who know or should have known that sexual harassment was taking place and failed to take immediate action to prevent it may be found liable for such harassment.
The New York State Civil Practice Law & Rules contain two major updates to anti-sexual harassment measures. First, under Section 5003-B, employers are no longer authorized to include nondisclosure clauses in settlement agreements or other resolutions of sexual harassment claims that would prevent the disclosure of the underlying facts and circumstances to the claim or action, unless confidentiality is preferred by the plaintiff. Second, under Section 7515, employers with four or more employees are barred from requiring mandatory binding arbitration to resolve sexual harassment claims, and mandates that such provisions will be rendered null and void. Both of these provisions became effective as of July 11, 2018.
New York City employers are required to go beyond what the new state legislation requires, as Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act into effect on May 9. Both the city and state regulations require annual anti-sexual harassment training. However, this act expands sexual harassment protections under the city’s Human Rights Law, requiring city agencies to assess workplace risk factors for sexual harassment and report on sexual harassment incidents, and mandating that contractors and subcontractors applying for city contracts must disclose their anti-sexual harassment policies.
Policies combating workplace sexual harassment have long been a best practice implemented by major employers, in the interest of worker protection and insulation from lawsuits. New York joins several other states including Delaware, California, Connecticut, and Maine in mandating that all employers must now take proactive measures to prevent sexual harassment, and companies should take all necessary steps to ensure their full compliance with these new laws.
We would like to thank our intern, Kristen Kennedy for her contribution to this article.