UPDATE – SEPTEMBER 4, 2018
New York State has released drafts of its model policy, model complaint form, model training, and FAQs available on its website. The draft model documents and FAQs will be open for public comment through September 12, 2018, after which revisions will be considered and the documents ultimately finalized. The draft documents and FAQs make clear that all employees must complete the model training or a comparable training that meets the minimum standards by January 1, 2019 and all employees who start after January 1, 2019 must complete the training within 30 calendar days of their start date.
New York City released the required Spanish version of the poster, which must be posted along with the English version by September 6, 2018.
NYS Passes Sexual Harassment law
Policy and Training
The state will be developing a model policy and a model training, so employers will not need to create their own. They will, however, need to administer both the policy and the interactive training. We will provide additional information in our clients HR Support Center Portal as well as via newsletter as it becomes availabl and released by the state.
Employers do have the option of creating their own policy and training program, so long as it meets the requirements set by the state.
No Mandatory Arbitration or Confidential Settlements
The new law bans contract provisions that require arbitration for claims of sexual harassment. Any such provision in a contract entered into after July 11, 2018, will be null and void. The rest of the contract will remain enforceable, assuming it was drafted correctly. However, this provision of the new law may be unenforceable under the Federal Arbitration Act. Until this question is resolved, we encourage employers to operate as if contract clauses that require arbitration of sexual harassment claims will not hold up in court or to consult with legal counsel before continuing to use them.
Confidential settlement agreements with respect to claims of sexual harassment are also prohibited by the new law, unless a confidential agreement is the preference of the person who brought the claim. If the claimant does not want confidentiality, employers will not be able to include language that prevents the disclosure of the underlying facts and circumstances of the claim when it involves sexual harassment. This provision of the new law also takes effect July 11, 2018.
Protections for Non-Employees
In addition to the requirements and prohibitions above, the law also gives non-employees—such as vendors, contractors, and consultants—the ability to file a complaint with the Division of Human Rights if they feel they have been sexually harassed in an employer’s workplace. This expansion of the current law has already taken effect.
Employers Next Steps
New York employers can take several steps to prepare for the new requirements created by the Budget.
- Employers, initially, should evaluate existing sexual harassment prevention policies and education regarding non-employees in the workforce, including independent contractors.
- Employers should review existing sexual harassment policies and training programs for compliance with the Budget’s minimum standards, and revise them accordingly if necessary.
- New York employers should review standard settlement and arbitration agreements in connection with sexual harassment complaints, and revise them in light of the Budget’s requirements.