Monday, New York’s budget bill for FY 2019 was presented to the Governor for signature. Buried among the usual budget line items are several provisions that will drastically affect employers.
In what seems to be a direct response to the #metoo movement, the bill sets training requirements, prohibits mandatory arbitration of discrimination claims, and outlaws confidentiality provisions in settlement agreements unless specifically requested by the complainant.
The employment related provisions are set forth in S7507-C. Here are the highlights (or low lights depending on your point of view):
- Mandatory Harassment Policies: All employers must have a policy against harassment that complies with or exceeds the model harassment policy that will be developed by the Division on Human Rights. At a minimum, the policy must:
- prohibit sexual harassment consistent with guidance issued by the department in consultation with the division of human rights and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
- include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
- include a standard complaint form;
- include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
- inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
- clearly state that sexual harassment is considered 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
- clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
- Mandatory Training: All employers must also provide “interactive” training to their employees. The Division will also be developing a model training program that must include:
- an explanation of sexual harassment consistent with guidance issued by the department in consultation with the division of human rights;
- examples of conduct that would constitute unlawful sexual harassment;
- information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
- information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
- address conduct by supervisors and any additional responsibilities for such supervisors.
- Statements by Public Contractors: Public contractors submitting a bid for work with the State must include a statement that they have a policy against sexual harassment and that they provide training to employees on that policy. Public Contractors must generally comply with the policy and mandatory employment training that applies to all employers under new Labor Law §201-g which sets for the policy and training requirements.
- Prohibition on Mandatory Arbitration Agreements: No employer may require that a claim of unlawful discrimination or sexual harassment be submitted to mandatory arbitration. Voluntary arbitration provisions are still okay. Collective bargaining agreements trump this provision, so if the CBA requires arbitration of discrimination or sexual harassment, then that would not run afoul of the law. The law only bans this on a prospective basis and the law will not apply to any agreements entered into prior to the effective date of the law.
- Bar on Most Confidentiality Agreements: Settlement agreements may not contain confidentiality provisions requiring the complainant to keep the facts of the harassment or discrimination confidential unless the complainant voluntarily agrees to it. Employers may still put a draft provision in agreements requiring confidentiality for the complainant to review. The complainant must be given 21 days to review the provision. If the complainant accepts the provision, there must be a separate writing stating that. Complainants must also have 7 days to revoke their acceptance of the agreement.
- Provides Protection (and a Cause of Action) for Non-Employees: the bill makes clear that an employer may be held liable if one of its employees sexually harasses a contractor, subcontractor, vendor, consultant or other non-employee providing services to the employer.
These provisions will go into effect 180 days after the law is enacted. We assume that the forthcoming regulations may clarify certain aspects of the law such as how frequently harassment training must occur. We will keep you updated when the regulations are issued.
In the meantime, employers should begin assessing their harassment policies and training programs. Employers should also review settlement agreements and employment agreements for compliance with the law.
Jeffrey Phillips Phoenix Lawyer 