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Monday, October 15, 2018

New York’s New Sexual Harassment Laws – What to Know

After a year of sexual harassment scandals, and the explosive growth of the #MeToo movement, state and local governments across the country have been taking action to strengthen and expand local laws guarding against such abuses. New York has been no exception: on April 11, 2018, Governor Andrew Cuomo signed into law a series of measures intended to prevent sexual harassment and close existing loopholes in the law. The law partly went into effect this past summer, and several other parts will continue to be rolled out in the months ahead. Let’s take a look at what employees need to know about their rights under this new law.

1. Mandatory Sexual Harassment Training

Until now, New York State had no requirement that employers provide any kind of training regarding sexual harassment to its workers.

Beginning on October 6th, employers in New York must adopt a workplace sexual harassment policy that fulfills the following goals and mandates:

  • The policy must be provided to workers in writing
  • The policy must prohibit sexual harassment and provide workers specific examples of prohibited conduct
  • The policy must inform employees of the relevant state and federal laws governing sexual harassment and also inform them that local laws may provide additional protections
  • The policy must include a standard complaint form that employees can use and provide a procedure for the timely and confidential investigation of complaints
  • The policy must inform employees about the administrative and judicial remedies they may access to adjudicate their claims
  • The policy must clearly state that sexual harassment is a form of workplace misconduct and that individuals who engage in sexual harassment, or who fail to take action in response to complaints of sexual harassment, will be sanctioned
  • The policy must also inform workers that retaliation for complaining about sexual harassment is also sanctionable workplace misconduct

Finally, New York now mandates that employers “conspicuously” display this poster, in English and Spanish, in the workplace, which informs employees of their rights.

New York has put together a guide for employees and their employers to navigate the new training policies. Check it out here – if you think your employer is failing to comply with these new regulations, New York provides resources to contact and voice your complaint.

2. No Forced Confidentiality Provisions

One issue we have seen come up again and again in the context of workplace sexual harassment scandals is the controversial “confidentiality” or “non-disclosure” clause contained in many settlement agreements. Essentially, clauses like these limit or ban entirely the discussion of a sexual harassment allegation after a settlement is reached. In other words, the employee may not publicly recount his or her claim.

You can imagine why this is problematic. If employees who have been victimized are unable to speak out, how can they warn others who may be future victims? Also, this may provide employers with an incentive not to fire or punish high-performing employees who engage in misconduct, since they can simply “buy off” accusers with the certainty that they cannot publicly accuse their harasser.

New York has now adopted an interesting solution to this problem. Confidentiality provisions now may not be included in sexual harassment settlements unless it is the complainant’s “preference” that such a provision be included. Further, the complainant will have 21 days to review any confidentiality provision, and the provision will be revocable for seven days after the signing of the agreement, which may not go into effect until that seven day period is up.

Right now, it is difficult to say how this will work in practice. One safe assumption, though, is that attorneys for employers will not be able to aggressively push confidentiality provisions on employees, or explicitly tie settlement amounts to the inclusion of a confidentiality provision. On balance, it is a good law and a step in the right direction.

3. Sexual Harassment Against Non-employees also Banned

This is a big and important change. Up to now, most state laws in New York covering workplace sexual harassment were directed at formal employees – that is, traditional W-2 workers who show up to work at a certain time and leave at a certain time. With the recent growth in independent contracting and freelance work, this is clearly inadequate. New York is now correcting this loophole by extending sexual harassment protections to contractors and freelancers, including other classes of workers like vendors and consultants. To take one example of how important this legal change is, the thousands of Uber drivers in New York had zero protections against sexual harassment by Uber management. Now, this has changed.

4. Mandatory Arbitration Clauses Banned

Some employee-employer contracts contain a provision mandating that, in the event there is any sort of dispute between the employee and the employer, it must be resolved in arbitration, rather than via a court or administrative proceeding. This is problematic for a whole host of reasons. Arbitration is a private process, in contrast to a court proceeding. Recoveries made by successful complainants may be smaller under arbitrated rulings. Perhaps most importantly, it bans the possibility of a class-action lawsuit from a group of employees who have been subjected to similar harassment.

As some commentators have noted, this provision itself contains a rather large loophole that could limit its application, as it states it is not valid when preempted by federal law. The Federal Arbitration Act governs many arbitration agreements, and so would take precedence over New York’s law. In fact, in a controversial decision, the Supreme Court ruled this past year, in Epic Systems Corp. v. Lewis, that mandatory arbitration clauses in employment contracts are valid and enforceable under the Federal Arbitration Act.  Nonetheless, New York’s action here is again a step in the right direction.

As with all new expansive laws that significantly alter the status quo, it remains to be seen exactly how this will all shake out in practice. That said, it is certainly a good thing that states and localities are taking the steps necessary to strengthen worker protections when it comes to the systemic and far too frequent problem of sexual harassment.

Read more about New York sexual harassment at our blog, and if you think you have been the victim of harassment, contact our New York sexual harassment lawyers to set up a free phone consultation.

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