Legal Matters with Robert L. Byrne, Esq.

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On August 12, 2019, 2019, Governor Cuomo signed new legislation regarding workplace sexual harassment.

This comes on the heels of legislation this past Spring which requires ALL New York employers, regardless of size, to adopt a sexual harassment policy and provide annual training.

The new law has four significant concerns for employers:

1. It eliminates the “severe and pervasive” standard used by Courts to determine the validity of sexual harassment claims under the Human Rights Law.

2. It eliminates the “Faragher-Ellerth”defense that had been available under US Supreme Court case law. This defense was available if the employer could demonstrate that it acted responsibly when and if it tried to prevent harassment and it corrected reported harassment.

3. It expands the ban on mandatory arbitration to all workplace discrimination claims. Previously the ban only applied to sexual harassment claims.

4. It expands the ban on non-disclosure or confidentiality provisions in settlement agreements of all discrimination claims, unless the employee agrees to one.

Albany has responded aggressively to the #MeToo movement. Employers need to be proactive and insure their written policies and practices adapt to the new environment. Plaintiffs’ attorneys already have.

NYS Sexual Harassment amendment to the state’s Labor Law.

New York employers have long been held accountable for workplace sexual harassment. However, as of October, 2018, they are responsible for waging  war against sexual harassment as the result of an amendment to the state’s Labor Law.

Section 201-g of the Labor Law mandates that every employer, regardless of size, adopt and distribute a sexual harassment policy that includes the following:

a.    The state definition of sexual harassment.

b.    An internal reporting procedure.

c.    To whom a complaint of harassment should be made.

d.    What state and federal agencies enforce the law.

e.    What managers’ responsibilities are.

f.     A prohibition of retaliation.

g.    What remedies are available.

While many mid-size employers, and most large employers, have had sexual harassment policies in place, this new law lands heavily on small employers, since an additional requirement is that every employer must conduct annual sexual harassment training for all employees. This training must be completed by October  9, 2019. New hires must be trained as soon as practical after being hired.

To satisfy the statute and the Department of Labor, the training must be “interactive” and allow for questions and answers. While there is no minimum length to the training, the Department of Labor’s own training template runs for approximately 45 minutes without Q & A. The training is compensable: the employees are “on the clock.” 

While the State law does not impose penalties for failure to publish the policy or conduct the training, lack of compliance will be exploited by plaintiffs’ attorneys to insure vicarious liability is imposed on neglectful employers.