Several laws were recently enacted in New York to expand protections for victims of sexual harassment in the workplace. Here, we (1) summarize these new laws, (2) discuss specific considerations for municipalities, (3) highlight new obligations imposed on municipal contractors, and (4) outline several key requirements that all employers must utilize in the workplace.
Expansion of Sexual Harassment Prevention Laws
Definition Expansion
One recent law expanded the scope of anti-discrimination protection under New York’s Human Rights Law by amending the definition of “covered employer,” which, in turn, created a new class of protected employees. Specifically, New York State and its cities, counties, towns, villages, and other political subdivisions, are now considered employers of any employee or official, including elected officials at both the state and local level, persons serving in any judicial capacity, and persons serving on the staff of any elected official.[1]
The new law also prohibits any activity that subjects employees to inferior terms, conditions, or privileges of employment, regardless of whether the activity is severe or pervasive. Though there may be a defense if the alleged act was a “petty slight or trivial inconvenience,” neither a formal complaint nor a showing that a similarly situated employee was treated more favorably is required to sustain a harassment claim. Moreover, attorney’s fees may be awarded in all such cases.
In addition to employees, these protections also cover contractors, subcontractors, vendors, consultants, and other non-employees working or providing services in the workplace.
Confidential Hotline
Another new law,[2] effective as of July 14, 2022, launches a statewide, confidential hotline to report sexual harassment in both the public and private sectors. The hotline will be operated by the New York State Division of Human Rights, which will work with attorney organizations to recruit experienced attorneys to provide pro bono assistance to those utilizing the hotline.
Release of Personnel Records Constitutes Retaliation
An additional new law prohibits employers from releasing or “leaking” personnel records as retaliation against employees who file claims of harassment. The law also allows the attorney general, upon information and belief, to commence a proceeding in state court against employers who have violated or may violate the prohibition against retaliation.[3]
Confidentiality and Arbitration Prohibited in Some Cases
Recent legislation also establishes prohibitions against confidentiality and arbitration in certain cases. As to confidentiality, all employers are prohibited from utilizing confidentiality agreements in the settlement or resolution of any claim involving sexual harassment, unless confidentiality is the complainant’s preference. Further, the confidentiality provision must be provided to all parties, and the complainant will have 21 days to consider the provision. If the complainant agrees to the confidentiality provision, it must be stated in a separately executed written agreement, which agreement is subject to revocation by the complainant within seven days after signing.[4]
Mandatory arbitration provisions are likewise barred in contracts relating to claims of sexual harassment, except where permitted by federal law.[5] In fact, employers are only permitted to incorporate a non-prohibited clause or other mandatory arbitration provision within a contract if the parties all agree.[6]
Likewise, at the federal level, “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,”[7] signed by President Biden on March 3, 2022, prohibits employers from forcing workplace sexual harassment or assault claims to be resolved by arbitration, even if such an agreement was already signed. Disputes as to whether the Act applies in any given situation are to be decided by a court, not an arbitrator. Further, the Act applies to any dispute or claim that arises or accrues on or after the signing date.
Additionally, in the event of any conflict between a collective bargaining agreement and the new law, the law specifies that the collective bargaining agreement shall control.[8]
Some Municipality-Only Considerations
The expansion of sexual harassment prevention laws also imposes several municipality-specific obligations.
Municipalities, for example, are barred from defending and indemnifying employees for (1) acts committed outside of the scope of their employment; (2) intentional wrongdoing and recklessness on the part of the employee; and (3) punitive damages.
Further, pursuant to a new section of the New York Public Officers Law, both paid and unpaid employees who are adjudicated to have committed harassment must reimburse the public entity responsible for paying out the harassment claim. If the employee fails to reimburse the public entity within 90 days of the public entity’s payment of the award, the public entity can garnish the employee’s wages.[9]
Similarly, an additional amendment to New York Public Officers Law adds analogous legislation applicable to employees of New York State and its agencies.[10] Even if a municipality’s investigation reveals that the employee acted appropriately, there is always a chance that a final judgment could find that the employee was individually liable if the litigation proceeds to a hearing before an administrative agency or trial.
The question may be whether the fact that the employee may ultimately have to pay a judgment personally creates a conflict of interest in both the strategy of proceeding to trial on a case or deciding to settle, as well as in the defense of a claim.
Municipal Contractors
New legislation also imposes requirements on contractors that contract with the state, or any state department or agency, where competitive bidding is required. As of January 1, 2019, all such contractors are required to submit a certification with all bids, under penalty of perjury, that the bidder (1) has implemented a written policy addressing sexual harassment prevention in the workplace and (2) provides annual sexual harassment training to all its employees. Further, the written policy and annual training must meet the newly imposed requirements under section 201-g of the New York State Labor Law.[11] It is in the discretion of the state department or agency to require the certification of contracts for services that are not subject to competitive bidding.[12]
If the contractor fails to meet the certification requirements, it must provide a signed statement detailing the reason for its failure to do so.[13] Otherwise, the contractor’s bid will not be considered.
Takeaways
Considering the recent expansion of legislation addressing sexual harassment in the workplace, all employers, including public entities, must expend resources and educate employees on preventing sexual harassment in the workplace to avoid liability. To that end, below is a list of several key requirements that all employers should adopt in the workplace:
- Adopt a model sexual harassment policy
- Include a standard complaint form
- Have a written procedure for the timely and confidential investigation of complaints and ensure due process for all parties
- Post required notices in the workplace
- Give the annual interactive training on sexual harassment to all employees (and possibly independent contractors)
- Make sure supervisory employees know their responsibilities for the prevention of sexual harassment
[1] N.Y. Exec. Law § 292.
[2] N.Y. Exec. Law § 295(18).
[3] N.Y. Exec. Law § 296.
[4] N.Y. Gen. Obligations Law § 5-336.
[5] N.Y. Civ. Prac. L&R § 5003-b.
[6] N.Y. Civ. Prac. L&R § 7515(4)(b)(ii).
[7] 9 U.S.C. Chap. 4 §§ 401-402.
[8] N.Y. Civ. Prac. L&R § 7515(4)(c).
[9] N.Y. Public Officers Law § 18-a.
[10] N.Y. Public Officers Law § 17-a.
[11] N.Y. Finance Law § 139-1(1)(a).
[12] N.Y. Finance Law § 139-1(1)(b).
[13] N.Y. Finance Law § 139-1(3).