State of New York has new rules to curb harassment

The unveiling of New York’s 2019 budget made it clear that the state has maintained its focus on curbing sexual harassment in the workplace. Included in the legislation, which Gov. Andrew Cuomo signed into law on April 12, are numerous new requirements that discourage sexual harassment, strengthen anti-harassment policies and make it easier for alleged victims to pursue harassment claims in court.

The measures affect both private and public employers.

Here are some of the highlights:

All employers

Effective July 11, 2018—90 days from the date when Cuomo signed the legislation on April 12—except where inconsistent with federal law, no written contract shall contain a clause or provision requiring the parties to submit any allegation or claim of sexual harassment to mandatory arbitration. Any such contract provision will be deemed null and void.

Settlements, agreements or resolutions of sexual harassment claims cannot include a nondisclosure provision unless such a provision is the complainant’s preference. Complainants shall have 21 days to consider such terms or conditions. Even if a complainant chooses to include such confidentiality provisions, he or she shall be afforded at least seven days to revoke the agreement. This provision takes effect July 11, 2018.

Employers must adopt and provide to all employees by Oct. 9, 2018, (180 days following the governor’s signature) a written sexual harassment prevention policy that meets or exceeds the minimum standards of a model policy to be drafted and published by the New York State Division of Human Rights. (See box below.)

Also by Oct. 9, employers are also required to utilize, on an annual basis, a model sexual harassment training program to be developed by the Division of Human Rights or a program that equals or exceeds the minimum standards provided by the Division of Human Rights’ model training.

As soon as the governor signed the law, the New York Human Rights Law was amended to cover sexual harassment of nonemployees (contractors, subcontractors, vendors, consultants or others providing services under a contract) at its workplace. Employers are now liable for harassment of nonemployees when it, its agents, or supervisors knew or should have known that the nonemployee was subject to such harassment and did not take immediate corrective action. The extent of the employer’s control over the nonemployee and other legal responsibility which the employer has with respect to the harasser will be considered.

State employees

Effective immediately upon the governor’s signature on April 2, any individual elected, appointed or employed by the State of New York and who has been subject to a final judgment of personal liability for intentional wrongdoing related to an adjudicated award that resulted in a judgment in a sexual harassment claim shall reimburse any state agency or entity that made a payment to a plaintiff on the individual’s behalf for his or her share of the judgment within 90 days of such payment.

The law contains a similar provision for commissioners, members of public boards or commissions, trustees, directors, officers, employees or any other person holding a position by election, appointment or employment in a public entity.

State contractors

Bids for state contracts, including public departments or agencies thereof, where competitive bidding is required by law, will require the bidder and each signatory to certify under penalty of perjury that they have a written sexual harassment policy that meets the requirements of the model sexual harassment policy to be promulgated by the New York Division of Human Rights.

This provision, which goes into effect Jan. 1, 2019, requires bidders on state contracts to provide annual sexual harassment prevention training.

Steps employers should take

In light of this legislation, employers are encouraged to review their anti-harassment policies and determine what revisions might need to be made in order to comply with the new requirements.

Employers should also consider what changes might need to be made in the frequency and content of their sexual harassment training programs.

Continue to investigate every report of sexual harassment thoroughly, and take prompt, effective action to address incidents of sexual harassment.

Megan Collelo is an associate in Bond Schoeneck & King’s Albany office.

New York’s pending model anti-harassment policy

The model sexual harassment prevention policy to be developed by the New York State Division of Human Rights will include provisions that:

  • Prohibit sexual harassment and provide examples of prohibited conduct
  • Provide information on state and federal laws concerning sexual harassment
  • Include a standard complaint form
  • Include procedures for investigating harassment complaints
  • Inform employees of their rights and all available forums for adjudicating complaints administratively and judicially
  • Clearly state that retaliation for complaining about harassment is unlawful.