2018 HR Conference to Examine New Changes to New York State Sexual Harassment Law!---------------------------May 3-4, 2018 Verona, NY

Employers in New York State should be aware that the law of sexual harassment will be changing dramatically as a result of the recently passed New York State budget.

Under these new provisions, employers in New York:

• may be held liable to a non- employee for sexual harassment
• will be required to adopt a state-mandated sexual harassment policy
• will be required conduct state-mandated annual sexual harassment training of its employees
• will be prohibited from including mandatory arbitration clauses in agreements pertaining to sexual harassment claims
• will be limited in including nondisclosure agreements regarding sexual harassment claim settlements

The following analysis has been published in the April 2018 issue of “Employment Law Matters” a publication of The Law Firm of Ferrara Fiorenza PC. Ferrara Fiorenza partners Nicholas Fiorenza and Michael Dodd are faculty members for the 2018 Human Resource Conference later this month.

For further conference information

Employers in New York State should be aware that the law of sexual harassment will be changing dramatically as a result of the recently passed New York State budget. The State Budget, which is comprised of both spending bills and a wide range of statutory changes, contains several provisions which will place additional obligations on employers in an effort to combat sexual harassment in the workplace. The following is a discussion of the new law’s requirements for employers of four or more workers in New York State.

Sexual Harassment of Non-Employees

Effective immediately, employers in New York may be held liable to a non- employee for sexual harassment occurring in that employer’s workplace. The new law defines “non-employee” in this context as a “contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace” or an employee of such an entity. To hold the employer liable, these potential plaintiffs will have to show that: 1) the employer knew or should have known that such non- employee was subjected to sexual harassment; and 2) the employer failed to take immediate and appropriate corrective action. The new law also states that:

“In reviewing such cases involving non-employees, the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of the harasser shall be considered.”

While it is not entirely clear at this point, this quoted section seems to suggest both good news and bad news for employers. The good news appears to be that if the employer has no control over or legal responsibility for the harasser, it may be able to escape liability for the harasser’s wrong doing. The bad news is that it suggests that if an employer is aware of (or should be aware of) sexual harassment of one non-employee by another non- employee in its facilities, it may have some liability exposure if it did not take reasonable steps to combat it (e.g., report it to the non-employees’ employers, ban the harasser from employer’s premises, etc.).

Mandated Sexual Harassment Prevention Policy

The new law directs the New York State Department of Labor (DOL) to work in consultation with the New York State Division of Human Rights (SDHR) to “create and publish a model sexual harassment prevention guidance document and sexual harassment prevention policy [for] employers….” Every employer must then adopt this model policy or establish a policy that “equals or exceeds the minimum standards provided by such model sexual harassment prevention policy.” The policy must be provided to all employees in writing. (Once developed, the model policy will be available on the DOL and SDHR’s websites.)

While we will have to wait and see what the specific model policy includes, the new law states that it shall:

• prohibit sexual harassment consistent with guidance issued by the DOL and SDHR, providing examples of prohibited conduct that would constitute unlawful sexual harassment;
• include information concerning the federal and state laws concerning sexual harassment and remedies available to victims, along with a statement that there may be applicable local laws;
• include a standard complaint form;
•  include a procedure for the timely and confidential investigation of complaints and “ensure due process” for all parties;
• inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
• clearly state that sexual harassment is considered a form of employee misconduct, that sanctions will be enforced against individuals engaging in this misconduct and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
•  clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation/proceeding is unlawful.

This portion of the budget bill goes into effect 180 days after the Governor signs it, which means it will be enforced against employers beginning in October 2018.

Mandated Sexual Harassment Prevention Training

 Like the sexual harassment prevention policy, the new law also requires the DOL and SDHR to join forces to produce a model sexual harassment prevention training program. Such model program must be “interactive” and include:

·       an explanation of sexual harassment consistent with guidance issued by the DOL and SDHR;

·       examples of conduct that would constitute unlawful sexual harassment;

·       information concerning the federal and state laws concerning sexual harassment and remedies available to victims of sexual harassment;

·       information concerning employees' rights of redress and all available forums for adjudicating complaints; and

·       information “addressing conduct by supervisors and any additional responsibilities for such supervisors”.

Again, like the model policy, every employer is required to utilize the model training program or establish its own training program that equals or exceeds the minimum standards established by the model. The new law requires that this training be provided to all employees on an annual basis. It will also go into effect in October 2018.

Our Firm is continuing to review these new requirements and identifying the best ways our clients can meet the policy, training and other standards they establish. We stand ready to work with you to tailor an approach addressing your specific needs while maintaining compliance with the new law.

Mandatory Arbitration Clauses Prohibited

The new law also prohibits written contracts which require the parties to submit any sexual harassment claim to mandatory arbitration which is “final and not subject to independent court review.” The inclusion of such clause in a written contract will not cause the remainder of the contract to be invalid or unenforceable, only as much of it as pertains to the mandatory arbitration of sexual harassment claims. Similarly, the new law does not prohibit an employer from incorporating a mandatory arbitration provision in an agreement, so long as it excludes sexual harassment disputes. It should also be noted that where there is a conflict between any collective bargaining agreement and the new law, the collective bargaining agreement will control. This portion of the new law will become effective in July 2018.

Nondisclosure Agreements Regarding Sexual Harassment Claims Limited

The budget bill also modifies the General Obligations Law and the Civil Practice Law and Rules to prohibit non-disclosure provisions in certain settlement and/or resolution agreements. Beginning in July 2018, the law will invalidate any term or condition of an agreement that would prevent the disclosure of the underlying facts and circumstances of a sexual harassment claim or action, unless the complainant prefers such an arrangement. Even when the complainant prefers such confidentiality, the law requires that the complainant be given 21 days to consider this term/ condition before executing the agreement. Moreover, the complainant is given seven days after signing it to revoke his/her agreement to same. The agreement will not become effective or be enforceable until such revocation period has expired.

If you have any questions regarding these matters or need assistance in this regard, please do not hesitate to contact The Law Firm of Ferrara Fiorenza PC at 315-437-7600.

To register for the 2018 Human Resources Conference, click here