On April 12, 2018, New York State passed a budget bill that includes components aimed at combating sexual harassment in the workplace. These new laws will affect all employers in New York State.
Effective immediately, the New York Human Rights Law's (NYHRL) prohibition against sexual harassment in the workplace has been expanded to apply to non-employees, including independent contractors, consultants, vendors, subcontractors, and individuals providing services pursuant to a contract. An employer may be found liable of a violation of the NYHRL when the employer, its agents, or its supervisors knew or should have known that a non-employee was subjected to sexual harassment in the employer's workplace, and the employer failed to take immediate and appropriate corrective action. In reviewing such cases involving non-employees, the extent of the employer's control and any other legal responsibility that the employer may have with respect to the conduct of the harasser will be considered.
Effective July 11, 2018, employers in New York State are prohibited from requiring employees to sign agreements that require mandatory binding arbitration of claims relating to sexual harassment. These mandatory arbitration clauses will be null and void but will not impair the enforceability of any other provision of such an agreement. There are some exceptions to this prohibition of mandatory arbitration clauses, such as where its application would be inconsistent with federal law or where the provision is in conflict with a collective bargaining agreement.
Also effective July 11, 2018, employers in New York State are prohibited from requiring nondisclosure clauses in any settlement, agreement, or other resolution of a sexual harassment claim, unless the condition of confidentiality is the complainant or plaintiff’s preference. If nondisclosure language is included, the complainant or plaintiff must have 21 days to consider such a term or condition, and his or her preference must be memorialized in an agreement signed by all parties. The complainant or plaintiff must then have at least 7 days following the execution of such agreement to revoke the agreement.
Effective October 9, 2018, all employers in New York State will be required to adopt a sexual harassment prevention policy that equals or exceeds the minimum standards set forth in a model sexual harassment policy that the New York State Department of Labor (NYSDOL), in consultation with the New York State Division of Human Rights (NYSDHR), has provided and made publicly available on its website. Any policy the employer adopts must be distributed to all employees in writing.
Also effective October 9, 2018, all employers in New York State will be required to provide annual anti-harassment training to all employees. The NYSDOL, in consultation with the NYSDHR, will provide a model sexual harassment prevention training program. Employers must adopt the model or implement a training program that equals or exceeds the minimum standards provided by the model training.
Effective January 1, 2019, where competitive bidding is required for certain state or public contracts, a bidding entity must certify that it implemented a written policy addressing sexual harassment prevention and that it provides annual sexual harassment prevention training. Where competitive bidding is not required, state departments and agencies may, at their discretion, require such certification.
To learn more about how the new laws may affect your business operations, please contact our attorneys at CCBLaw.