The New York State Budget for Fiscal Year 2019 (“Budget”) was signed into law by Governor Cuomo on April 12, 2018. Much of the Budget is dedicated to covering the various costs of government. However, in apparent response to the #MeToo movement, the Budget is also embedded with a significant amount of legislation designed to combat sexual harassment in the workplace. Sexual harassment provisions of S7507C (Section KK) can be found on the New York State Senate Website. Some of the highlights are discussed below.
First, effective immediately, “non-employees,” such as contractors, subcontractors, vendors, and consultants can now bring a sexual harassment claim pursuant to the New York State Human Rights Law. Prior to this amendment, such workers were generally not protected.
Second, effective October 9, 2018, all employers will be required to adopt and implement a sexual harassment policy and training program, which meets or exceeds the standards of a model sexual harassment policy and training program that will be established by the New York State Division of Human Rights (“NYSDHR”). The NYDHR has not yet released the model policy or training program, however the Budget sets forth their basic parameters.
As to the model policy, it must (a) describe and prohibit sexual harassment, and clearly state that disciplinary action may be taken against persons who engage in sexual harassment or knowingly permit such behavior while acting in a supervisory capacity; (b) provide basic information regarding federal, state, and local laws prohibiting sexual harassment, forums in which relief can be sought, and potential remedies; (c) include a standard complaint form, as well as a description of the complaint procedure; and (d) clearly state that retaliation against persons who complain of sexual harassment or assist in an investigation or proceeding relating to sexual harassment is unlawful.
As to the model training program, it must include (a) an explanation of sexual harassment that is consistent with guidance to be issued by the NYSDHR (the NYSDHR issued a previous guidance in 2015, which is available online at https://dhr.ny.gov/sites/default/files/pdf/guidance-sexual-harassment-employers.pdf. The yet to be issued guidance may be similar, but is likely to be more expansive and address changes in the law since that time); (b) examples of sexual harassment; (c) information regarding state and federal laws prohibiting sexual harassment, forums in which sexual harassment claims may be asserted, as well as potential remedies available; (d) information regarding the reporting responsibilities of supervisors.
Third, effective July 11, 2018, confidentiality clauses used in connection with the settlements of sexual harassment claims are no longer permitted, unless confidentiality is the explicit preference of the victim. Mandatory arbitration agreements for claims of sexual harassment will also become unenforceable. Note that these provisions are not retroactive – confidentiality clauses and arbitration agreements entered into prior to July 11, 2018, may remain enforceable.
Fourth, effective immediately, any officer or employee of the state who is the subject of a final judgment of personal liability in connection with intentional wrongdoing relating to a claim of sexual harassment will be required to reimburse the state for any state or public payment made on that judgment. If the officer or employee fails to reimburse the state, the money will be deducted from his or her paycheck. Even if he or she is no longer receiving a paycheck from the state, other measures will be taken to enforce this responsibility.
Fifth, effective January 1, 2019, contractors who bid on work to be performed for the State of New York must include with their bid a statement that they have implemented a sexual harassment policy and training program that is consistent with NYSDHR’s model policy and program. This requirement applies to out of state contractors as well.
The law as it applies to sexual harassment continuously evolves. Thus, it is important to stay abreast of new developments. One of Leeds Brown Law, P.C.’s main areas of practice is protecting employees who have or are experiencing sexual harassment at work. If you or anyone you know has or is experiencing sexual harassment, seek legal counsel right away. Call (212) 661-4370, (516) 873-9550, or email us today.
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