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.
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.