In response to the recent outcry over sexual harassment claims, New York State just passed a number of laws to combat sexual harassment in the workplace. As a result, employers will need to adjust their policies and practices, including handbooks, and ensure their best practices are in line with the new legal requirements.
Mandatory Anti-Harassment Training and Policies
Effective October 9, 2018, all employers, regardless of the number of employees, will be required to implement and distribute a sexual harassment prevention policy and provide annual anti-harassment training to all employees. The policy and training must comport with requirements that will be developed by the New York State Department of Labor and Division of Human Rights. Employers will also be required to provide a written copy of the policy to all employees each year.
Non-Employee Anti-Discrimination Protections
Effective immediately, the New York State Human Rights Law has been amended to extend protection to “non-employees,” who provide services under a contract, such as independent contractors, against sexual harassment. An employer now may be held liable if it knew or should have known that a covered non-employee was sexually harassed at its workplace and did not take appropriate corrective action. Therefore, it is important for employers to update their anti-harassment policies in their employment handbook to include non-employees.
Prohibition on Non-Disclosure Provisions
Beginning July 9, 2018, employers will no longer be permitted to use nondisclosure provisions in agreements settling or resolving any claim or court action where the foundation of the claim involves sexual harassment claims, unless the complainant requests confidentiality. An employer must provide notice of a non-disclosure provision, and the complainant must receive 21-days to consider whether to accept or reject the provision. If the complainant accepts the non-disclosure provision, he or she will then have seven (7) days to change his or her mind and revoke it. The nondisclosure clause will not become effective or enforceable until the revocation period has expired.
Mandatory Arbitration Clauses of Sexual Harassment Claims Prohibited
Effective July 11, 2018, employers are prohibited from including mandatory arbitration clauses for claims of workplace sexual harassment in any written contract that requires final and binding arbitration of any claim based on sexual harassment. Arbitration clauses in collective bargaining agreements are exempt from this prohibition, as well as arbitration clauses dealing with other types of claims. The new law did leave open the possibility that it its enforceability may be limited, where an arbitration clause is subject to the Federal Arbitration Act as a matter of federal preemption of state law.