New law requires all NY employers to have policies to prevent sexual harassment

It’s always been prudent for companies to have a sexual harassment prevention policy, but businesses in New York State now have no choice. Provisions in the newly passed state budget require firms to institute a policy and provide annual training.

And those are just some of the measures employers must comply with going forward, as part of legislation aimed at combating workplace sexual harassment.

“New York is really leading the way on very significant mandates for business that really changes what employers can and cannot do regarding events of harassment in the workplace and censorship of it,” says Aoifa O’Donnell, CEO of National EAP, a Hauppauge company that provides employee assistance programs and corporate development services. “This is a very significant change for businesses.”

It affects all employers in the state, and while some of the provisions don’t take effect immediately, employers should start preparing now, she says. “It’s important to demonstrate a pro-active attitude ... and ultimately to ensure a safe workplace for all employees.”

Effective immediately are expanded protections against sexual harassment for non-employees including contractors, subcontractors, vendors and consultants, says Allan Bloom, a partner at Proskauer Rose LLP in Manhattan.

This provision has the biggest potential impact, he says, because businesses “have a whole new category of individuals that can now sue a company for sexual harassment.”

The legislation amends the New York State Human Rights Law to ensure that regardless of their specific title or role, all individuals are protected against sexual harassment in the workplace, state officials said.

A provision that takes effect July 11 prohibits companies from using non-disclosure clauses in settlements or agreements relating to claims of sexual harassment unless they are agreed to by the complainant, Bloom says. Mandatory arbitration clauses regarding claims of sexual harassment are also prohibited.

Effective Oct. 9, employers are required to distribute written anti-harassment policies in the workplace and provide annual anti-harassment training for all employees based on models to be developed and published by the New York State Department of Labor and Division of Human Rights, Bloom says.

Many mid- to large-size companies already have such policies in place, says Doug Rowe, a labor and employment partner at Certilman Balin Adler & Hyman in East Meadow.

It’s the smaller firms that may be starting from scratch, he says.

A policy should identify what constitutes sexual harassment, give examples of prohibited conduct, provide a complaint form and procedure, and identify the person to whom the complaint should be made, he says.

Rowe adds that the prohibition against non-disclosure clauses in settlements could make employers less inclined to settle if the protection of confidentiality is gone.

State officials say the change is an important step to end practices of pressuring victims of sexual harassment into signing agreements that silence them.

While the law says individuals can’t be prevented from discussing the circumstances that led to the sexual harassment claim, it’s unclear if there could still be a non-disclosure provision with regard to the amount a company pays to settle the claim, says Glenn Grindlinger, a partner in the Manhattan office of Fox Rothschild.

He says the most onerous part of the provisions for employers will be the annual training requirement. It’s unclear how many hours will be required, but employees will have to take time out of the workday to complete the training, he says.

It’s also unclear how training will have to be administered, Grindlinger says, noting the law doesn’t specifically say in-person.

“The burden will be on the employer to maintain records to show that they had their employees complete the required training,” he says.