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Employment Update: New York Expands Sexual Harassment Protections for Employees

May 15, 2018

Employment Alert:  New York Expands Sexual Harassment Protections for Employees

 

New York Governor Andrew Cuomo recently signed into law revisions to the current New York law prohibiting sexual harassment. The new law requires employers to establish a sexual harassment prevention policy and annual training; prohibits non-disclosure provisions in agreements settling sexual harassment claims and bans mandatory arbitration of sexual harassment claims. The new law also adopts a definition of “sexual harassment.” Here are key aspects that every employer should know. 

 

DEFINITION OF SEXUAL HARASSMENT ADOPTED INTO STATE LAW

 

Although the New York State Division of Human Rights has a definition for sexual harassment that it uses administratively, there was previously no statutory definition of what constitutes sexual harassment. The New York Executive Law has now been amended to add the following uniform definition of sexual harassment: 

 

unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature if such conduct is made either explicitly or implicitly, a term or condition of employment, or submission to or rejection of such conduct is used as the basis for employment decisions affecting an individual’s employment, or such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment, even if the complaining individual is not the intended target of the sexual harassment.

 

This provision of the law is now in effect.

 

 

“NON-EMPLOYEES” NOW PROVIDED PROTECTION

 

The new law amends the New York State Human Rights Law to prohibit sexual harassment against employees and certain “non-employees,” which includes: contractors, subcontractors, vendors, consultants or any person providing services pursuant to a contract in the workplace or who is an employee of a contractor, subcontractor, vendor, or consultant. 

 

This portion of the new law is now in effect. 

 

 

ANTI-SEXUAL HARASSMENT & PREVENTION POLICY

 

Employers will now be required to create a policy against sexual harassment that meets or exceeds the standards set forth in the law. Among other things, the policy must include: a strict prohibition against sexual harassment, examples of prohibited conduct, investigation procedures, a standard complaint form, and measures to prevent intimidation, retaliation, or coercion to protect the complainant. The New York State Department of Labor (“DOL”) will create and publish a model sexual harassment prevention policy that employers may use for guidance.

 

This provision of the law takes effect October 9, 2018. 

 

 

ANNUAL SEXUAL HARASSMENT TRAINING

 

New York employers are now required to provide annual sexual harassment training that meets or exceeds the standards set forth in the law. Again, the DOL will create a model training program that employers may use for guidance.

 

This provision of the law takes effect October 9, 2018.

 

PROHIBITION OF MANDATORY ARBITRATION CLAUSES AND CONFIDENTIAL SETTELEMENT AGREEMENTS

 

The new law also amends the General Obligations Law (“GOL”) to add a provision prohibiting employers from including non-disclosure provisions in agreements settling sexual harassment claims, unless the complainant requests confidentiality. Under the amended provision of the GOL, the complainant may be able to disclose the underlying facts and circumstances to the claim or action. If the complainant chooses to keep the underlying claims confidential, the new law requires that the employer give the complainant twenty-one (21) days to consider the confidentiality provision and seven (7) days to revoke his or her acceptance of the confidentiality provision. 

 

Additionally, the new law will amend the Civil Practice Laws and Rules to add a provision prohibiting mandatory arbitration clauses for sexual harassment claims.

 

This provision of the law shall take effect on July 11, 2018.

 

*             *             *

 

            The above provisions require New York employers to implement new policies, practices and procedures.  It is highly recommended that New York employers seek the advice of counsel to ensure timely compliance.

 

Please contact Patrice Koeneke, Managing Partner, at patrice.koeneke@mcblaw.com if you have any questions or would like additional information.

 

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