State of New York Passes New Bill On Sexual Harassment

By Douglas Lipsky

Governor Cuomo is expected to shortly sign into law a bill that is designed to increase the transparency of sexual harassment complaints in the work place and to stop sexual harassment. The law will prohibit employers from requiring employees to arbitrate sexual harassment claims, prohibits the inclusion of non-disclosure agreements in settling sexual harassment claims, unless requested by the complainant, directs the NYS Department of Labor to produce a model sexual harassment prevention policy and model sexual harassment prevention training program, and expands the New York State Human Rights Law to cover contractors, vendors, consultants and other non-employees in a workplace.

The bill, once in effect, will require the DOL to establish an interactive training program complete with: (1) an explanation of sexual harassment consistent with guidance issued by the State; (2) examples of conduct that would constitute sexual harassment; (3) information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment; (4) information concerning employees’ rights of redress and all available forums for adjudicating complaints; and (5) address conduct by supervisors and additional responsibilities for supervisors.  New York employers must provide training on an annual basis that meets or exceeds these minimum standards.

The model policy developed by the DOL must include: (1) a statement prohibiting sexual harassment consistent with NYS guidance; (2) information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victim of sexual harassment and statement that there may be applicable local laws; (3) include a standard complaint form; (4) include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties; (5) inform parties of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially; (6) clearly state that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and (7) clearly state that retaliation against individual who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful. This section will go into effect 180 days after it is signed.  Once the DOL develops the model policy, New York employers’ policies must equal or exceed the minimum standards in the model policy.

Regarding non-employees, an employer will be liable when it, its agents, or its supervisors knew or should have known that non-employees were subjected to sexual harassment in the employer’s workplace, and the employer failed to take immediate and appropriate corrective action.  This section will go into effect immediately after becoming law.

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.