NY State Ups the Ante on #TimesUp for Employers

by Hirschfeld Kraemer LLP

Hirschfeld Kraemer LLP

In response to the #Metoo movement and the increased national dialogue regarding sexual harassment in the workplace, the State of New York (and, subject to signature by Mayor De Blasio, NY City as well) have issued sweeping new legal requirements and prohibitions that have greatly changed the landscape for most NY employers.

Written Disseminated Policies & Annual Interactive Training

Significantly, the sweeping NY State law will now require that every covered employer in the State (as defined, virtually all businesses) do the following:

  1. Have and disseminate to all employees a written anti-harassment policy that meets or exceeds specific statutory guidelines; and
  2. Conduct anti-harassment training for every employee (not just supervisors and managers) every year.

There are additional mandates and specific minimum requirements for the mandatory training, including that the training be interactive. As a result, training that is solely video-based will not satisfy the legal requirements. Further, because the law does not define what would constitute sufficiently “interactive” training, many canned computer training modules also may be legally insufficient.  It is clear though that live training that covers all the topics delineated in the statute would meet the training requirement.

No NDAs & No Mandatory Arbitration

In addition to the policy and training requirements, the new NY law prohibits confidential settlement agreements with NDAs for sex harassment claims unless non-disclosure is the claimant’s preference.  The new law also bars mandatory arbitration agreements for claims or allegations of sexual harassment except where such prohibition is inconsistent with federal law.

Covering Non-Employees

The new law extends the coverage of NY harassment and discrimination law relating to sexual harassment to certain non-employees: contractors, subcontractors, vendors, consultants and anyone else performing services in the workplace pursuant to a contract.  Employers can now be held responsible for sexual harassment against non-employees at their NY workplaces if supervisors, managers or other company agents knew or should have known about the harassment and failed to take immediate and effective corrective action.

When Do These Changes Apply?

Restrictions on Sexual Harassment Settlement Agreements with NDAs – Effective July 11, 2018

Prohibition on Mandatory Arbitration of Sexual Harassment Claims – Effective July 11, 2018

New Policy Dissemination & Annual Training Requirements – Effective October 9, 2018

Liability for Sexual Harassment of Non-Employees – Effective Immediately

What Should NY Employers Do?

Employers without an anti-harassment policy and training program should develop both following the guidelines delineated in the statute[1].  For employers that have a policy and training program, more work still needs to be done.  Their policies should be reviewed carefully to insure they satisfy all the new requirements and revised policies should be committed to writing and distributed to all employees.   Similarly, training programs should be reviewed and retooled to meet the new legal standard. This is also a great opportunity to make the training more “modern” by developing a program that is truly designed to change and improve culture and not merely to check the legally-required boxes.  In the #metoo era this is not just prudent but good business and the right thing to do to.

Employers will also want to review their mandatory arbitration agreements and consider modifications.  All new settlement agreements involving sexual harassment claims will need to comply with the no-NDA rules.  Finally, policies and training should encompass protections for non-employees and since this aspect of the new law is effective immediately employers should consider promptly conducting a thorough assessment of their work environments.

Stay Tuned

All NY employers will have to be nimble and move with some urgency to meet these new requirements; in particular, these new laws will have a dramatic effect on small and mid-sized businesses that often lacked the resources to voluntarily do the annual training that is no longer a choice. At a time when daily headlines uncover another incident of pervasive harassment, the legal, moral, and practical motivations for real change are significant, and this new law is likely only the first of more major changes to come.

This is the first in a series that will cover relevant legal and practical considerations for harassment prevention and response; look to this blog for further updates concerning these important employer obligations.

[1] NY City employers should also review and incorporate elements of the new NY City law, provided that Mayor De Blasio (as expected) signs the proposed legislation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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