Employment Law Blog

Categories: Harassment

New York's #MeToo Moment

September 5, 2018

In what may seem to some a matter of political expediency, and to others a long-overdue effort to eradicate workplace sexual harassment, New York Governor Andrew Cuomo and New York Mayor Bill de Blasio appear to be competing for the “#MeToo Movement Championship.” Whatever their motivations, they have signed into law sweeping legislation that affects all New York employers.

Click here to read more.

Attorney: Lauren Topelsohn
Related Practice: Labor and Employment
Category: Harassment

New York's Six New Sexual Harassment Prevention Laws

May 9, 2018

On April 12, 2018, Governor Cuomo signed New York’s latest budget that includes six laws reflecting the concerns of the Metoo# movement that employers need to know. 

Effective immediately: 

  • Businesses Must Protect Non-Employees from Sexual Harassment.  The law expands the sexual harassment protections under New York’s Human Rights Law to non-employees (independent contractors, vendors, and their employee) who perform services at an employer’s work place. 
  • Settlement/Judgment Involving Government Employees. Government officials and employees may not use public funds to resolve sexual harassment claims, and must reimburse any State or local agency that pays a judgment entered against a government as a result of the offending official or employee’s conduct. 

Effective July 11, 2018: 

  • Restrictions on Non-Disclosure Provisions for Sexual Harassment Claims. Use of such confidentiality clauses are enforceable only if: (1) they conform with the complainant’s preference; and (2) as with a release under Older Workers Benefit Act (OWBPA), the complainant has 21 days to review the agreement (which cannot be shortened), followed by a seven day revocation period. This law impacts all “General Releases” of employment claims that include a confidentiality provisions by requiring that such release “carve out” sexual harassment from the release of any claim under the New York Human Rights Law.
  • Mandatory arbitration, no more? New York’s Civil Practice Law and Rules, Article 75 will be amended to prohibit agreements that require the arbitration of disputes relating to sexual harassment, except “where inconsistent with federal law.” S7507-C, Part KK, Subpart B.  Since Federal law encourages arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., this provision may be pre-empted until (and unless) the United States Congress passes a corresponding prohibition. 

Effective October 9, 2018:
Mandatory Sexual Harassment Policy, Prevention Training and Complaint Procedure.  The New York State Department of Labor and Division of Human Rights are required to develop and publish a model sexual harassment prevention policy and a model sexual harassment prevention training program for use by employers.  All New York employers are required (a) to adopt the model policy and training program or, establish their own that equals or exceeds the minimum standards of the model policy and program; and (b) distribute the written policy and provide sexual harassment training to all employees at least annually.

  • The model sexual harassment prevention policy will:
    • Prohibit sexual harassment
    • Explain what sexual harassment is and provide examples 
    • State that sexual harassment constitutes employee misconduct 
    • Advise what remedies are available under federal, state and local law for victims of sexual harassment, and the available forums (administrative and judicial) for adjudicating such complaints
    • Include a model complaint form and standard investigative procedure;  and
    • Prohibit retaliation for making a sexual harassment complaint, or for testifying or assisting in any proceeding relating to such a claim
  • The model sexual prevention training will explain:
    • What sexual harassment is and provide examples 
    • Additional responsibilities of supervisors
    • Employee’s rights under State and federal laws governing sexual harassment, and available remedies and forums for adjudicating such complaints 

Effective January 1, 2019:
Government Contractors.  As part of the bidding process for State contracts, bids must include a statement certifying that the bidding entity has implemented a written policy addressing sexual harassment in the workplace and sexual harassment training to all of its employees. With respect to no-bid projects, the State has the discretion to request such certification. 

 

Attorney: Lauren Topelsohn
Related Practice: Labor and Employment
Category: Harassment

Confidential Sexual Harassment Settlements No Longer Tax Deductible

April 22, 2018

The recently enacted Tax Cuts and Jobs Act (the “Act”) has had a tremendous impact on the settlement of sexual harassment cases. Section 13307 of the Act, found here, does away with a tax deduction for the settlement amount paid in a sexual harassment case if the settlement is confidential.  This new provision also precludes a tax deduction for attorneys’ fees if there is a requirement of confidentiality.  It seems that this also applies to a plaintiff’s own legal fees.  This tax change adds new variables to settling sexual harassment claims.  In the past, employers always insisted on confidentiality.  Time will tell whether this changes and whether this provision of the tax law will cause the amount paid to settle these claims to increase.  Plaintiffs will want more money for these claims in order to pay the extra tax liability while employers will want to pay less since they would no longer be able to deduct the settlement amount and their legal fees.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Harassment