Legal Alert: New York State Enacts New Legislation Expanding Anti-Harassment Laws to Non-Employees, Requiring Anti-Harassment Training & Policies, & More

On April 12, 2018, Governor Cuomo expanded an employer’s obligations under the New York Labor Laws.

Laws Prohibiting Sexual Harassment Laws Now Apply To Non-Employees
Effective immediately, the New York State Human Rights Law has been expanded to prohibit sexual harassment against certain non-employees, including, but not limited to: contractors, subcontractors, vendors, consultants or other people providing services pursuant to a contract in the workplace, and the employees of a contractor, subcontractor, vendor, or consultant or other person providing services pursuant to a contract in the workplace (collectively, “Covered Persons”).  Under this new law, employers could be liable if they knew or should have known that a Covered Person was subjected to sexual harassment in the employer’s workplace and the employer failed to take immediate and appropriate corrective action.

Mandatory Anti-Sexual Harassment Policy and Training 
The New York Labor Law has been amended to require all employers to provide all employees with a written anti-harassment policy and anti-harassment training. The policy must meet certain standards that will be promulgated by the Department of Labor, but will likely need to include a strict prohibition of sexual harassment, examples of prohibited conduct, an explanation of complaint procedures, the statutory provisions prohibiting sexual harassment, a description of an employee’s rights if the employee is a victim of sexual harassment, and an explanation of the forums in which an employee may bring a sexual harassment claim. The Department of Labor will issue a sample policy that may be used by employers or an employer may use its own policy so long as the policy meets the requirements set forth in the Labor Law.

Employers will also be required to provide all employees annual anti-sexual harassment training. The training must be “interactive” and include a definition of “sexual harassment” with examples, information on the statutory provisions that prohibit sexual harassment, a description of the rights and remedies available to employees who allege sexual harassment, and an explanation of the forums in which an employee may bring a sexual harassment claim. The Department of Labor will create a model anti-harassment training or an employer may develop its own, so long as the employer’s training meets the requirements set forth in the Labor Law. It is not clear yet whether the “interactive” nature of the training requires that the training be in-person, or if online or pre-recorded trainings would be permissible.

The new policy and training requirements go into effect on October 9, 2018.

Limits on Use of Non-Disclosure Agreements in Settlement Agreements Used to Resolve Sexual Harassment Allegations
The New York General Obligations Law was amended to add a new provision that limits the use of certain confidentiality clauses in agreements resolving sexual harassment claims. Employers may no longer include provisions in such agreements that would prevent the person alleging sexual harassment from disclosing the underlying facts of the complaint, unless the person wants such a non-disclosure to be in place. There are specific requirements that must be met if the person alleging sexual harassment decides to include a non-disclosure clause.

This new requirement goes into effect on July 11, 2018.

Prohibition on the Use of Mandatory Arbitration Clauses for Sexual Harassment Claims 
The Civil Practice Law and Rules have been amended to largely prohibit the use of mandatory arbitration clauses for sexual harassment claims.  Previously, such clauses were sometimes included in employment contracts or employee handbooks.

This prohibition will go into effect on July 11, 2018.

What Should You Do Now?

  • Amend any policies and procedures to include non-employees among the groups of people in your workplace who could be subjected to sexual harassment.
  • Train relevant employees that non-employees can now raise sexual harassment allegations and that any such allegations should be reported through the organization’s established channels.
  • Review your current anti-harassment policies and training materials to make sure they comply with the Department of Labor’s current guidance. But keep in mind that once the Department of Labor issues its model policy and training, you may be required to review and revise them again.
  • If your organization does not currently have an anti-sexual harassment policy or conduct anti-sexual harassment training, start exploring options for such policies and training.
  • Remove any non-disclosure language from any model or template settlement agreements or other similar documents that are used to settle sexual harassment claims in New York.
  • Remove mandatory arbitration clauses from employment contracts and/or employee handbooks or explicitly state that sexual harassment claims are not included in any mandatory arbitration clauses that you may use in New York.

If you have questions about this new legislation, please contact your Pro Bono Partnership attorney
at 914-328-0674.