United States: In a Nod to the #MeToo Movement, New York Legislature Passes Comprehensive Anti-Sexual Harassment Legislation

Last Updated: April 9 2018
Article by Robert S. Whitman, Anne R. Dana and Nila Merola

Seyfarth Synopsis:  The New York Legislature has passed, and Governor Andrew M. Cuomo is expected to sign, a bill that will, among other things, prohibit all employers from requiring employees to arbitrate claims of sexual harassment.  The bill will also prohibit employers from including non-disclosure agreements in settlements of sexual harassment claims, unless requested by the complainant.  Additionally, the bill will require state contractors to implement sexual harassment training and  policies, extend protections to non-employees, such as contractors or vendors, and require the Department of Labor to draft a model anti-sexual harassment policy and training program. 

As part of a bill establishing the 2018-19 budget, the New York State Legislature has included provisions making sweeping changes to the law governing workplace sexual harassment.  The new legislation, among other things, prohibits mandatory arbitration of sexual harassment complaints, requires court approval of settlements of lawsuits involving allegations of sexual harassment, and prohibits non-disclosure agreements (NDAs) in settlements of lawsuits involving sexual harassment allegations unless the victim requests confidentiality.  The legislation will also expand protections to independent contractors and create a uniform sexual harassment policy and training for businesses. 

The provisions in the bill affecting private employers are summarized briefly below.  In contrast to an earlier version of the bill, the final enactment does not provide a definition of "sexual harassment."  While the Governor is expected to sign the bill shortly, the timetable remains uncertain, and it is possible, although unlikely, that changes in the fluid political environment in Albany could prompt some revisions. 

Prevention of Sexual Harassment By Bidders for State Contracts

Subpart A amends the State Finance Law to require that, for every bid made to the State or any public department or agency of the State, where competitive bidding is required, the bidder must submit a certification, under penalty of perjury, that it has implemented a written sexual harassment policy and provides annual sexual harassment prevention training to all employees.  The written policy must meet the requirements of Section 201-g of the New York Labor Law (see the discussion of Subpart E below).

Where competitive bidding is not required, the certification requirement is at the discretion of the department, agency or official.  While the bill states that a bid shall not be considered, and a contract may not be awarded, where the bidder has not complied with the certification provision, it does permit the bidder to provide an explanation of its failure to provide the certification, suggesting that the absence of a certification may not be fatal to a successful bid.

This section will take effect on the first of January after the date on which it becomes law.

Prohibition of Mandatory Arbitration Clauses

Subpart B adds Section 7515 to the Civil Practice Law and Rules ("CPLR").  It provides that, "except where inconsistent with federal law," employers are prohibited from including, in any contracts with employees, provisions that mandate arbitration for allegations or claims of sexual harassment.  The law also declares null and void clauses in existing contracts that mandate arbitration of sexual harassment claims.  Mandatory arbitration clauses requiring arbitration of claims other than sexual harassment are unaffected by the new legislation.  The law will take effect on the 90th day after the bill becomes law.

Prohibition of Non-Disclosure Agreements

Subpart D, effective on the 90th day after it becomes law, adds Section 5-336 to the General Obligations Law ("GOL") and Section 5003-b to the CPLR.  Under GOL Section 5-336, employers are prohibited from including an NDA in any settlement of a sexual harassment claim unless the complainant requests confidentiality.  If the complainant requests confidentiality, the terms must first be provided to all parties.  The complainant then has 21 days to consider the terms, and, after 21 days, if the term is still the complainant's preference, the condition must be memorialized in an agreement signed by all parties.  The complainant then has 7 days to revoke the agreement, which shall not be effective or enforceable until the revocation period expires.  GOL Section 5-336 appears to apply to settlements of all claims of sexual harassment, not just those filed in court.

CPLR Section 5003-b includes the same provisions as GOL Section 5-336, but applies to settlements of sexual harassment lawsuits.

Mandatory Sexual Harassment Prevention Policy and Training Program

Subpart E amends the Labor Law by adding Section 201-g, which requires the Department of Labor, in consultation with the Division of Human Rights, to produce a model sexual harassment prevention policy and a model sexual harassment prevention training program.

The model policy must include, among other things: information concerning the federal and state statutory provisions on sexual harassment; examples of what constitutes unlawful sexual harassment; a standard complaint form; a procedure for investigation of complaints; rights of redress and all available forums for adjudicating sexual harassment complaints; and a prohibition of retaliation.

Similarly, the training program must be interactive and cover specific topics, including the following: examples of conduct that would be unlawful; the federal and state statutory provisions concerning sexual harassment; remedies available to victims of sexual harassment; and rights of redress and all available forums for adjudicating complaints.

Every employer must either adopt the model policy and training program, or establish a policy and training program that equals or exceeds the minimum standards provided by the models.  Employers are also required to provide all employees with a written copy of the policy and training on an annual basis.  This Section takes effect on the 180th day after it becomes law.  

Extension of Protections to Non-Employees and Individual Liability

Currently, non-employees, such as contractors, vendors, or consultants, are not covered by State law prohibiting sexual harassment.  Subpart F, which will take effect immediately and apply to all employers in the State, extends protections to such non-employees by amending the Executive Law.  Under new Section 296-D, an employer may be liable to non-employees when the employer, its agents, or 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 actions.

What Happens Next?

For the most part, the various sections of the bill will not go into effect until at least three months after the Governor's signature, allowing employers sufficient time to ensure compliance.  The provision of most immediate potential impact for employers concerns mandatory arbitration clauses.  While an outright prohibition on such clauses, even one limited to sexual harassment claims, would be vulnerable to a legal challenge based on preemption by the Federal Arbitration Act, the bill includes the proviso "except where inconsistent with federal law."  Sorting out the legal issues around that proviso could, of course, take years to resolve.  (A bill pending in the U.S. Senate, co-sponsored by New York's Kirsten Gillibrand, would amend the FAA to outlaw arbitration clauses with respect to sexual harassment claims.  If that is enacted, then preemption issues involving the New York provision would likely be moot.)  In the meantime, employers should consult with legal counsel to assess whether to revise their agreements and/or policies and to be cognizant of the impact the law may have on pre-existing agreements.

Employers should similarly consider reviewing and revising their standard settlement agreements, at least as they pertain to employees within New York State, to ensure that they comply with subpart D's prohibition of NDAs.  This revision to standard settlement practice comes on the heels of recent changes at the federal level, where the 2017 tax reform law prohibits the deduction of any payments related to sexual harassment or sexual abuse settlements where an NDA is used.

Once the New York Department of Labor publishes the model policy and training program, employers will need to ensure that their existing sexual harassment policies, as well as their training for employees, are in compliance with the models.  For those employers who do not have written policies or do not provide training, they will need to institute both. 

Employers utilizing contractors, vendors, or consultants should also consider revising their policies to account for the broader scope of who can file claims under the new law.  Given that this provision goes into effect immediately upon passage of the bill, employers should consider making such amendments sooner rather than later.

The attorneys at Seyfarth Shaw LLP are preparing a Webinar on the new legislation.  Details will be announced shortly.  We are also available to provide any assistance with ensuring that you have robust policies in place regarding anti-harassment in the workplace and procedures to effectively respond to complaints.  We can also provide interactive anti-harassment training tailored to your company's specific business and needs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Robert S. Whitman
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions