Are You Preparing For New York’s Sexual Harassment Laws?

August 14, 2018 at 9:11 am Leave a comment

Among the most high-profile legislation passed by the legislator this year was a package of bills responding to the “me too” movement striking out against sexual harassment. While I wanted to wait for some regulations clarifying some of these provisions to be promulgated, we are getting late in the summer and it’s time to start preparing for these mandates. As you’ll see, these requirements cannot simply be satisfied by popping new policies into the binder. This is certainly an issue worthy of contacting your HR lawyer about, if you haven’t done so already. Training programs will have to be organized and important deadlines will have to be complied with.

Among the changes approved by the Governor and the Legislator is:

  • New York State is requiring that by October 9th of this year all employees receive a sexual harassment policy which meets or exceeds the standards to be established by the Department of Labor. Employers can either choose to adopt a model policy created by the Department of labor or amend their own policy to meet the Department of Labor requirements. The catch is that the Department of Labor has yet to promulgate its model policy. Under the legislation, the policy must: (i) prohibit sexual harassment and provide examples of prohibited conduct that would constitute unlawful sexual harassment; (ii) include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws; (iii) include a standard complaint form; (iv) include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties; (v) inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially; (vi) clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and (vii) clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
  • A requirement for annual interactive sexual harassment training. Although we have to wait to see what the regulations actually say, it’s a very safe assumption that in order to comply with this regulation it will no longer be enough to have your employees watch pre-recorded sexual harassment webinars. In addition, much of what will have to be in your sexual harassment policies will also have to be included in this training.
  • There’s also a couple of laws that have already taken effect, most importantly a new section 5003-b of New York’s CPLR now prohibits settlement agreements involving sexual harassment claims from including non-disclosure agreements unless “the condition of confidentiality is the plaintiff’s preference.” The plaintiffs must have twenty-one days to make a decision. In addition, sexual harassment claims cannot be subject to mandatory arbitration provisions.

Finally, a new section 296-d of New York’s Executive Law makes it an unlawful practice to permit sexual harassment of non-employees in your workplace. Chances are your policy doesn’t specifically address this issue but it should. There has actually been some interesting cases on this issue and the armchair lawyer in me says that this could be one of the areas where you see a surprising amount of litigation.

Entry filed under: HR, Legal Watch, New York State. Tags: , .

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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