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The Labor & Employment Blog provides employers with breaking news, insights, and legal analysis on the wide range of labor and employment issues facing employers and businesses.  While the Blog provides a general summary of regulation updates, it is not intended to be, and should not be relied upon as, legal advice.  The labor & employment attorneys at Chamberlain Hrdlicka stand ready to counsel employers on the issues they face.

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Is Your Company in Compliance with New York's New Sexual Harassment Laws?
It cannot be denied that we are now living in a new era with regard to sexual harassment allegations. The #MeToo and #TimesUp movements are motivating employees to speak out about sexual harassment in the workplace at record numbers. According to the EEOC, the number of charges filed by individuals alleging they were victims of workplace sexual harassment increased by 12 percent in fiscal 2018 from the prior year. While sexual harassment awareness is necessary, it can present challenges for employers and lawmakers alike. Employers must continue to take prompt, remedial action respecting investigations in response to complaints, but must ensure that the accused is also handled fairly. Navigating a shift in requirements for legal compliance and attitudes related to workplace interactions can be difficult but a workplace devoid of harassment must be central to legal compliance initiatives.

This new era has ushered in increased legislative involvement as legislatures in several states have introduced measures aimed at curbing workplace sexual harassment and addressing how complaints and resolutions must be handled by employers. For example, the state of New York has recently adopted several new requirements aimed at addressing the manner in which employers deal with sexual harassment complaints.

On April 12, 2018, as part of the 2018-2019 New York State Budget, the Governor signed legislation aimed at combating sexual harassment in the workplace. But, New York employers were not given much lead time to comply as many deadlines have already passed. It is still not too late to come into compliance, however.

The legislation provides the following mandates:
  • Effective July 11, 2018, employers are not permitted to institute mandatory arbitration agreements related to sexual harassment claims.
  • Effective July 11, 2018, courts are prohibited from approving confidential settlement agreements for sexual harassment claims, unless: (i) confidentiality is the complainant's preference; (ii) the complainant has been given 21 days to consider the confidentiality provision; and (iii) the complainant is given 7 days in which to revoke his or her acceptance of the confidentiality provision.
  • By October 9, 2018, all employers must enact an anti-sexual harassment policy that meets or exceeds the standards contained in a model policy put forward by the state of New York. You may find the policy at this link- https://www.ny.gov/sites/ny.gov/files/atoms/files/SexualHarassmentPreventionModelPolicy.pdf
  • By October 9, 2018, all employers must adopt a sexual harassment training program, which must be equal to or exceed the standards of the model training program developed by the state of New York. The statute does not expressly address when employees must go through the training program. However, the best reading of the law is that new employees hired after October 9, 2018, should be put through the training program at the time of hire or shortly afterwards, while current employees must go through the training by at least October 9, 2019. After this initial training, all employees must undergo the training once annually. A copy of the model training is available at https://www.ny.gov/sites/ny.gov/files/atoms/files/SexualHarassmentPreventionModelTraining.pdf
The bottom line is that New York employers should come into compliance as soon as possible if they have not already. Other states are in the process of enacting similar laws, which are expected to be rolled out in 2019.

For example, California, following in New York's footsteps, has clarified how important it is for employers to prevent sexual harassment in the workplace. On September 30, 2018 Governor Brown signed Senate Bill 1300 into law. Of consequence for employers who may be litigating sexual harassment claims, SB 1300 provides that:
(d) The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past ...
(e) Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues "not determinable on paper."
In enacting this legislation, California is warning employers that it will be very difficult to obtain summary judgment on sexual harassment claims and employers could be facing expensive trials in the future. Whether the affirmative defenses typically used to knock out claims at summary judgment will remain intact in California remain to be seen.

#MeToo and #TimesUp have already created a new world in which employees and employers must operate with regard to conduct in the workplace. Employers should take this opportunity to reaffirm their policies promoting a safe and tolerant workplace in which harassment of any kind will not be tolerated.

For questions on ensuring enforceable arbitration agreements or independent contractor relationships in your business, please do not hesitate to contact us.

This Labor & Employment Alert provides a general summary of regulation updates and is not intended to be, and should not be relied upon as, legal advice.