On April 13, 2018, Governor Cuomo signed legislation with new provisions to address sexual harassment in the workplace, educational institutions, and public accommodations, among other places, by changing the State’s Human Rights Law.  These new provisions apply to all New York employers regardless of size or the number of employees.  In addition, each provision has its own effective date, with several provisions heaving already taken effect. As such, employers must work to ensure their timely compliance

As set forth below, the new legislation requires employers to adopt a sexual harassment policy that meets certain minimum standards, to regularly provide sexual harassment training to employees, and generally prohibits mandatory arbitration clauses and non-disclosure agreements relating to sexual harassment except in specific and limited circumstances.  To aid employers with meeting the new regulations, the State has created an employer toolkit with links to a model policy, model training documents, and other related forms.

If your organization is concerned about complying with these requirements, the Law Offices of Mark A. Cuthbertson are well-equipped to assist you, whether by providing employee training or drafting/revising your organization’s sexual harassment policy.  For more information, contact Mark Cuthbertson at [email protected].

I. Sexual Harassment Prevention Policy

As of October 9, 2018, all New York employers are required to have a written sexual harassment prevention policy and provide it to all employees in writing or electronically.  If provided electronically, the employees must be able to access the policy on a computer provided by the employer during work hours and print a copy for their records.  While the State does not require that employers obtain a signed acknowledgment from their employees, the practice is encouraged as providing evidence of compliance.

As to the substance of the policy, a company’s sexual harassment prevention policy must:

• Prohibit sexual harassment, provide a definition for same, and give examples of prohibited conduct that would constitute unlawful sexual harassment;
• Clearly state that non-employees (contactors, interns, vendors, consultants, etc.), are also covered by the policy and are protected from sexual harassment;
• Provide information about state and federal sexual harassment laws and the remedies available, and a statement that there may be applicable local laws;
• Describe a procedure for the timely (“as soon as possible”) investigation of complaints and keep investigation-related documents in a “confidential location”;
• Require that written investigation documents include “the basis for the decision” regarding the resolution of the complaint;
• Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints, either administratively or judicially;
• Clearly state that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and supervisory and managerial personnel who knowingly allow such behavior; and
• Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.

While including some formulation of these provisions is mandatory in every sexual harassment policy, the law does not prohibit employers from including additional provisions that go beyond the baseline established by the State’s model policy.  Common examples of additional provisions include a warning that false and malicious accusations may result in disciplinary action, a statement that investigations will be handled as confidentially as possible, and policies about fraternization and employee dating.  It is also common for sexual harassment policies to include broader anti-discrimination provisions addressing race, gender, age, and/or disability.

Finally, employers are required to have a complaint form for employees to use when reporting incidents of sexual harassment (a model form prepared by the State is included in the employer toolkit linked above).  While this was originally required to be a part of the sexual harassment policy itself, a revision after the public comment period now permits employers to simply inform employees of where the form maybe found (ex: company website).

II. Sexual Harassment Training

Under the new legislation, employers are required to ensure that all employees, including full-time, part-time, seasonal, and temporary employees, receive sexual harassment training by October 9, 2019, and at least once per year thereafter.  This includes employees who work a portion of their time in new York State, even if based in another state.  Employees who start their employment after October 9, 2019 must complete their sexual harassment training as soon as possible after their start date.  If an employee fails or refuses to take the training, employers are empowered to use administrative remedies to ensure compliance.

The training program itself can consist of a model program developed by the State or comparable training that meets the same minimum standards.  While live training is not required, the training must be “interactive,” i.e. require some form of employee participation.  This can be satisfied in several ways, such as (1) online programs that ask employees questions (which the employer answers correctly), (2) programs that allow employees to submit questions and get a timely response, (3) having a live trainer (either in-person, by phone or video conference, etc.) answer questions, and/or (4) requiring feedback from employees about the training and materials provided.  Training for supervisors or managers should also address the added responsibility for individuals in those roles.  Notably, there is no minimum number of training hours per year or per training session.

Finally, training must be specific to the standards and company practices of each employer.  As such, an employee’s training from a prior employer in the same calendar year will only suffice where both employers used the same unmodified state training model, or provide training from another shared source (e.g., a training program provided by a shared union).

III. Mandatory Arbitration

As of July 11, 2018, New York prohibits all new contracts from including mandatory arbitration clauses, i.e. clauses that require the parties to submit any dispute relating to binding arbitration prior to the commencement of any legal action, for sexual harassment claims.  One exception is collective bargaining agreements, which the law provides will be controlling in the event of a conflict with the new law.  This provision, codified in CPLR § 7515, does not prohibit the use of mandatory arbitration for other types of claims as part of a contractual agreement.

IV. Non-Disclosure Agreements

As of July 11, 2018, employers are prohibited from including or agreeing to terms in any resolution of a claim involving sexual harassment that would prevent the complainant from disclosing the underlying facts and circumstances of the harassment, unless the complainant indicates a preference for such a non-disclosure provision.

To establish that the complainant’s preference, the complainant must be given twenty-one days to consider the terms of any settlement agreement.  After twenty-one days, if the claimant wishes to include a non-disclosure provision, it must be memorialized in an agreement signed by all parties.  The claimant then has seven days to revoke the agreement, with the agreement only becoming effective after the revocation period expires.  Notably, the employer may still propose the inclusion of a non-disclosure provision, provided that the above process is followed.  

V. State Employees

Any individual elected, appointed, or employed by the State who has been subject to a final judgment of personal liability for intentional wrongdoing in a sexual harassment claim that resulted in an adjudicated award shall reimburse any state agency or entity that made a payment to a plaintiff on the individual’s behalf for his/her share of the judgment within 90 days of such payment.  The law also has similar provisions 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.  This took effect when the law was signed by Governor Cuomo on April 13, 2018.

VI. 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 policy (compliant with the new law) addressing sexual harassment and that they provide annual sexual harassment prevention training.  This takes effect January 1, 2019.