New York State
On April 12, 2018, New York Governor Andrew Cuomo signed into law the New York State Legislature’s anti-sexual harassment legislation. The bill includes a number of requirements impacting private employers, including the implementation of mandatory sexual harassment training and policies.
Specifically, effective immediately, the law expands the anti-sexual harassment protections to certain nonemployees. Employers may now be liable for the sexual harassment of contractors, subcontractors, vendors, consultants, or any other person providing services in the workplace, if the employer, its agents, or supervisors knew or should have known that the nonemployee was subject to sexual harassment in the employer’s workplace, and failed to take appropriate corrective action.
Further, effective July 11, 2018, the law prohibits the inclusion of nondisclosure provisions in settlement agreements for sexual harassment claims, unless that is the complainant’s preference, the complainant is given a period of 21 days to consider whether to accept the nondisclosure provision and, after signing the agreement, the complainant has seven days to revoke such acceptance. Specifically, employers will not “have the authority” to include in a settlement agreement any terms or conditions that would “prevent the disclosure of the underlying facts and circumstances,” for a claim involving sexual harassment. The new legislation also bans contractual provisions that mandate arbitration for any allegations of sexual harassment.
Finally, effective October 9, 2018, the law requires all employers to adopt a sexual harassment prevention policy to be distributed in writing to employees. The law spells out a number of items the policy must include, such as a standard complaint form, examples of prohibited conduct, and the procedure for the timely and confidential investigation of complaints.
The law also requires that employers conduct annual sexual harassment prevention training. The training program must be interactive and, at a minimum, it must contain the following: (1) an explanation of what constitutes sexual harassment; (2) examples of conduct constituting unlawful harassment; (3) information on state and federal laws concerning sexual harassment and remedies available to victims; and (4) information on employees’ rights and available forums for adjudicating complaints administratively and judicially.
In order to provide guidance, the law directs the New York State Department of Labor to work with the New York State Division of Human Rights to develop a model sexual harassment policy and model training program. Employers can choose whether to adopt the models prepared by the state or develop their own, so long as their policies and training meet or exceed the standards contained in the models.
New York City
Likewise, on April 11, 2018, the New York City Council passed, and Mayor de Blasio is expected to soon sign, the Stop Sexual Harassment in New York City Act. The law requires employers with 15 or more employees to provide sexual harassment training to new employees after 90 days of employment and to continue to provide interactive sexual harassment training to all employees on an annual basis. Additionally, the bill requires employers to obtain from each employee a signed acknowledgment that he or she attended the training. If signed into law by the Mayor, the bill will take effect on April 1, 2019.
If you have any questions or concerns on how these laws may impact your business practices or have any other questions please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.