The New York state budget bill, signed into law in April, has an assortment of provisions aimed at preventing sexual harassment and the silencing of victims.
Policy and Training
The new law requires all employers to adopt and distribute a sexual harassment prevention policy and provide interactive sexual harassment prevention training to all employees. The law goes into effect October 9, 2018.
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. Employers should expect additional materials to be released by the state in the coming months.
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.