In our April 2018 Barton in Brief newsletter we wrote about the enactment by the NYC City Council of 11 separate bills designed to provide further protection for employees when it comes to sexual harassment in the workplace. Mayor De Blasio signed the bills into law, which apply to nearly all employers in New York City. Governor Cuomo and the State Legislature have followed-suit by incorporating into the 2018-2019 State Budget amendments to the State Labor Law which closely mirror the City’s new law. The State’s action applies to nearly all employers throughout the State of New York and encompasses sweeping changes to the rules prohibiting sexual harassment. Our synopsis of the key provisions:

• Similar to the City ordinance, the State amendments will require all employers, regardless of their size, to provide sexual harassment training, annually, to all employees, from the CEO on down.
• Employers must provide all employees with a written non-harassment policy.
• Employers must develop and publish a standard complaint form to be used by employees.
• Employees must be informed, in writing, of all available forums for adjudicating sexual harassment complaints (e.g., EEOC, NYS Division of Human Rights, etc.).

The foregoing provisions become effective October 9, 2018.

Perhaps more concerning for NYS employers is the provision, which became effective April 12 of this year, extending the protections of the State Human Rights Law to non-employees. Thus for example, an employer will be held liable for the sexual harassment of contractors, consultants, vendors, etc. where the employer knew or should have known that harassment is occurring in the workplace.

Further, effective July 11, 2018, the law will prohibit clauses in employment agreements that would require arbitration of sexual harassment claims (subject to possible challenge in court). However, other disputes arising from the employment relationship, including other forms of discrimination, could still contractually be required to be arbitrated. In addition, non-disclosure agreements, found in most settlement agreements and releases, will also be prohibited unless requested by the plaintiff or employee.

What should an employer in New York State be doing at this juncture? At a minimum:

• Review existing sexual harassment policies to assure that they will be in compliance with the new laws.
• Review and consider revising standard settlement agreements to ensure they comply with the new prohibition against non-disclosure requirements.
• Consider revising or removing arbitration requirements in employment agreements.
• Adopt annual sexual harassment training programs to comply with the new laws.
• To the extent employers use contractors, consultants, and other non-employees, adopt and implement policies to assure compliance with the employer’s obligation to them with respect to sexual harassment.

As noted in our April 2018 Barton in Brief newsletter, sexual harassment cases are not going away. While it always has been prudent for employers to take an aggressive and preventive posture with respect to protecting employee rights, New York City and New York State are now requiring it. Employers need to act now well in advance of the first claim of sexual harassment being lodged against them.

Barton stands ready and able to assist in protecting employers’ interests. If your organization would like assistance in this area, please contact Philip S. Mortensen or Scott G. Grubin.