On Oct. 1 New York state released its final sexual harassment guidance and resources, which implement New York’s April 2018 amended sexual harassment laws. The combined legal framework imposes the below requirements upon virtually all New York employers, including healthcare institutions.
The new law requires employers to establish a sexual harassment prevention policy and annual training, prohibits non-disclosure provisions in agreements settling sexual harassment claims and bans mandatory arbitration of sexual harassment claims. The new law also adopts a definition of sexual harassment.
Definition of Sexual Harassment Adopted into State Law
Although the New York State Division of Human Rights has a definition for sexual harassment that it uses administratively, there was previously no statutory definition of what constitutes sexual harassment. The New York Executive Law has now been amended to add the following uniform definition of sexual harassment:
“Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature if such conduct is made either explicitly or implicitly, a term or condition of employment, or submission to or rejection of such conduct is used as the basis for employment decisions affecting an individual’s employment, or such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment, even if the complaining individual is not the intended target of the sexual harassment.”
This provision of the law is now in effect.
Nonemployees Now Provided Protection
The new law amends the New York State Human Rights Law to prohibit sexual harassment against employees and certain nonemployees. This provision is particularly relevant in many healthcare settings where there are often outside vendors, volunteers and independent contractors providing clinical and administrative services.
This portion of the new law is now in effect.
Anti-sexual Harassment and Prevention Policy and Complaint Form
Employers are now required to create a policy against sexual harassment that meets or exceeds the standards set forth in the law. Among other things, the policy must include a strict prohibition against sexual harassment, examples of prohibited conduct, investigation procedures, a standard complaint form, and measures to prevent intimidation, retaliation or coercion to protect the complainant. The New York State Department of Labor (DOL) will create and publish a model sexual harassment prevention policy that employers may use for guidance.
This provision of the law took effect Oct. 9, 2018.
Annual Sexual Harassment Training
New York employers are now required to provide annual sexual harassment training that meets or exceeds the standards set forth in the law. The DOL will create a model training program for employer guidance.
This takes effect Oct 9, 2019, with respect to existing employees. For newly hired employees, the deadline set forth in the guidance states that implementation should be “as soon as possible.” We recommend providing new hire training as soon as possible but no more than 30 days after hire.
Prohibition of Mandatory Arbitration Clauses and Confidential Settlement Agreements
The new law amends New York law to add a provision prohibiting employers from including nondisclosure provisions in agreements settling sexual harassment claims, unless the complainant requests confidentiality. Furthermore, the complainant may be able to disclose the underlying facts and circumstances to the claim or action. If the complainant chooses to keep the underlying claims confidential, the new law requires that the employer give the complainant 21 days to consider the confidentiality provision and seven days to revoke his or her acceptance of the confidentiality provision.
The new law amends the Civil Practice Laws and Rules to add a provision prohibiting mandatory arbitration clauses for sexual harassment claims. This provision of the law is now in effect.
The specific legal requirements are discussed at ny.gov/programs/combating-sexual-harassment-workplace. Employers should seek guidance to ensure legal compliance and to avoid claims of alleged sexual harassment.
Gregory B. Reilly is Head of the Employment and Labor Law Practice Group at Martin Clearwater & Bell LLP. For more information, visit mcblaw.com.