NY State Ups the Ante on #TimesUp for Employers

by Hirschfeld Kraemer LLP
Contact

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.

© Hirschfeld Kraemer LLP | Attorney Advertising

Written by:

Hirschfeld Kraemer LLP
Contact
more
less

Hirschfeld Kraemer LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.