New York State Creates New Sexual Harassment Obligations Concerning Arbitration

By Douglas Lipsky

Earlier this month, Governor Andrew Cuomo signed into law a 2019 budget implementing provisions of the previous budget. In compliance with state standards, the amended New York budget now obligates employers in the state to:

  1. Distribute a written sexual harassment policy; and
  2. Perform annual sexual harassment training.

The new budget amends the New York Civil Practice Law and Rules so that as of July 11, 2018, sexual harassment claims are no longer bound to mandatory arbitration. However, arbitration is still required for sexual harassment claims that are included as part of a collective bargaining agreement.

However, due to the fact that the United States Supreme Court has consistently held that states who expressly identify a banned category for arbitrable state claims, are preempted by the Federal Arbitration Act, it remains unclear as to just how enforceable the new law will in fact be.

Are Confidential Settlement Agreements Now Prohibited?

The new law also prohibits courts from approving of confidential settlement agreements for sexual harassment claims unless:

  1. The complainant prefers confidentiality;
  2. The complainant has been provided 3 weeks (21 days) to consider the confidentiality provision; and
  3. The complainant is given a week (7 days) during which he or she has the right to revoke acceptance of the confidentiality provision.

This confidentiality provision of the Budget will also go into effect on July 11, 2018, though not all provisions are set for that date.

Effective immediately, under the new budget liability under the New York State Human Rights law has been extended to employers who “permit” the sexual harassment of any “non-employees” such as independent contractors.

Employer Sexual Harassment Policy

The budget is also amended under New York Labor Law to require the New York State Division of Human Rights and the New York Department of Labor to work together to establish their own model sexual harassment policy. Furthermore, all New York employers are subject to following either this curated policy, or developing their own policy by October 9, 2018, using the model’s standards:

  • A statement prohibiting sexual harassment;
  • Examples of prohibited conduct that constitutes sexual harassment;
  • Information regarding the federal and state statutory provisions concerning sexual harassment and the remedies that are available to victims;
  • A statement that there may be additional applicable laws not included therein;
  • A standard complaint form;
  • The procedure for timely and confidential investigation of complaints;
  • A statement informing employees of their rights of redress and available forums for sexual harassment adjudication (both judicially and administratively);
  • A statement recognizing sexual harassment as a form of employee misconduct and that sanctions will be enforced against any employee committing sexual harassment, as well as any manager or personnel who knowingly allowed such behavior to continue; and
  • A statement that retaliation against those reporting sexual harassment is unlawful

Employer Sexual Harassment Prevention Program

In addition to a written policy, the Budget also requires the New York State Department of Labor and the New York State Division of Human Rights to develop a model sexual harassment prevention program and for employers to follow this state model or to create their own, compliant with New York state standards on an annual basis. Such program must be implemented by October 9, 2018, and include:

  • A clear explanation of what constitutes sexual harassment;
  • Examples of what is considered sexual harassment;
  • Information about state and statutory provisions regarding sexual harassment
  • Remedies available to victims;  
  • Information regarding employee’s right of redress;
  • Information containing all available forums for adjudication.

What Proactive Steps Can Employers Take?

  1. Evaluate the company’s existing sexual harassment policies and available education regarding independent contractors.
  2. Review sexual harassment policies and training programs already in place for compliance with the new budget’s standards.
  3. Review standard settlement agreements

Contact an Experienced Sexual Harassment Attorney

Each and every day, lawmakers are trying to improve the quality of employees work life. Unfortunately, there are still hostile work environments that are plagued with discrimination and sexual harassment. If you are a victim of sexual harassment, contact an experienced employment law attorney like Lipsky Lowe.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.