The New York State legislature, in concert with Governor Cuomo, has recently agreed to new measures that radically change employer requirements relative to sexual harassment policies, training and the resolution of sexual harassment claims. Employers need to be aware of these new measures, as they will affect all New York State employers, and the penalties for non-compliance may be significant.
Sexual Harassment Prevention Policy
The legislation will require every New York employer to maintain a specific written sexual harassment prevention policy. The Division of Human Rights and Department of Labor have been tasked with creating a model policy, which will include specific complaint forms, access to New York State and Federal Law, anti-relation language and guidelines regarding how to proceed with and investigate claims. If you presently do not have a policy, you will be required to create one which is consistent with the rules promulgated by these agencies. If you do have a present policy, you may be required to supplement same to comply with the minimum threshold mandated by these agencies.
The legislature has required that these agencies provide their model policy within 180 days. Though unclear, it appears that employers will be required to create or alter their policies within 180 days regardless.
Sexual Harassment Training
Employers will also be required to provide employees with qualified sexual harassment training on an annual basis. The training will require specific examples and explanations of sexual harassment, information regarding viable State and Federal laws, and details regarding the investigatory process and prohibition of retaliation.
Until this provision is formally signed into law it is uncertain whether the employer is required to conduct the training “in house,” whether new hires are required to attend training within a certain period of employment and whether the training can be done via the web or live training is required.
Though these two changes are going to greatly affect all New York employers, at this time it is unknown what the penalties will be for non-compliance or which State agencies are going to be tasked with overseeing employers’ conduct.
Other Important Changes to Sexual Harassment Laws
In addition to the requirements for appropriate sexual harassment policies and training, New York State has promulgated certain rules regarding the settlement of sexual harassment lawsuits and claims. First, employers can no longer require employees to agree to arbitrate sexual harassment claims. As such, unless initiated by the employee, sexual harassment claims will now be litigated in Court or through an appropriate agency.
Second, non-disclosure agreements as part of a sexual harassment claim’s settlement are no longer enforceable unless it is the complainant’s preference to have the terms remain confidential. Thus, if a party seeks to settle a sexual harassment claim to avoid said claim becoming public, unless the employee desires for the claim to remain confidential, this protection for the allege harasser no longer exists.
These changes will significantly affect all New York State employers. Employers should begin creating appropriate policies and researching sexual harassment training to ensure compliance with these laws.
If you would like more information regarding the new rules, please contact partner, Jeffrey Ettenger at 631-777-2401.