United States: Labor & Employment Alert >> New York State Imposes New Legal Requirements For Workplace Sexual Harassment Prevention

On March 30, 2018, New York State's legislative leaders reached an agreement with Governor Cuomo over a $168 million budget deal for the 2018-19 fiscal year. Buried in the text of the budget agreement were several provisions that will dramatically impact the law governing workplace sexual harassment. The changes, many of which resemble measures introduced in a number of states to respond to mounting public pressure in the wake of the #MeToo movement, will affect virtually all New York employers. Employers should familiarize themselves with the legislation, and be mindful that some provisions will take effect immediately upon its signing.

Mandatory Sexual Harassment Prevention Policy and Training Program

The legislation requires the New York State Department of Labor (DOL), in consultation with the Division of Human Rights (DHR), to create and publish a model sexual harassment policy. The policy must, at a minimum:

  1. prohibit sexual harassment and provide examples of conduct that would constitute unlawful sexual harassment;
  2. include information concerning the federal and state statutory provisions concerning sexual harassment, the remedies available to harassment victims and a statement that there may be applicable local laws;
  3. include a standard complaint form;
  4. include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
  5. inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  6. clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
  7. clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.

The bill additionally mandates that the DOL and DHR produce a model sexual harassment prevention training program. The training program must be interactive and contain:

  1. an explanation of sexual harassment;
  2. examples of conduct that would constitute unlawful harassment;
  3. information on state and federal laws concerning sexual harassment and remedies available to victims; and
  4. information on employees' rights and all available forums for adjudicating complaints administratively and judicially.

Once the DOL publishes a model policy and training program, the bill requires employers to either adopt the state's models or establish their own policies and training programs that meet or exceed the minimum standards set by the DOL within 180 days after the bill becomes law. Employers must distribute their new policy in writing to all employees, and utilize their new training program to provide training to all employees on at least an annual basis.

Employers should be on the lookout in the coming months for the DOL's model policy and training program. Once published, employers must ensure that their existing policies and training are in compliance with the new requirements. Employers that do not currently have written anti-harassment policies or provide training will need to implement both as part of their HR compliance program.

Prohibition on Nondisclosure Agreements for Sexual Harassment Claims

One of the most potentially impactful aspects of the bill is its restriction on the inclusion of nondisclosure clauses in any settlement or other agreement regarding sexual harassment "unless the condition of confidentiality is the complainant's preference." Specifically, the bill prohibits any contractual provision "that would prevent the disclosure of the underlying facts and circumstances to the claim or action." To ensure that the complainant prefers to include a nondisclosure clause, similar to the federal Older Workers Benefit Protection Act's consideration and revocation periods for settlement of age discrimination claims, the bill requires that the complainant be provided 21 days to consider the clause before signing the agreement, and 7 days after signing to revoke it. Any agreement containing a nondisclosure clause for a harassment claim will not become enforceable until the revocation period expires. The nondisclosure restrictions take effect 90 days after the budget is signed into law.

This restriction, in addition to recent changes to federal tax law prohibiting the deduction of any payments involving a settlement related to sexual harassment or abuse where the settlement agreement contains a nondisclosure provision, puts further pressure on employers' reliance on these provisions to keep the terms of settlements confidential. Employers should review and consider revising their standard settlement agreements to ensure they comply with the new law.

Prohibition on Mandatory Arbitration Clauses for Sexual Harassment Claims

The bill also contains a provision preventing employers from enforcing mandatory arbitration clauses to resolve sexual harassment claims in employment contracts. Any mandatory arbitration clause in a contract entered into after the provision's effective date (90 days after the bill becomes law) will be null and void with respect to sexual harassment claims. One major exception to this prohibition is where a collective bargaining agreement provides for mandatory arbitration of sexual harassment claims.

The legislation applies only on a going forward basis, and does not appear to impact contracts signed before its effective date. Moreover, the bill's inclusion of the proviso "except where inconsistent with federal law" raises questions of how much it will actually impact New York employers. The Federal Arbitration Act (FAA) requires enforcement of arbitration agreements involving interstate commerce, which in today's economy typically includes employment agreements. Even without the proviso, the FAA would likely preempt the bill's prohibition on arbitration clauses in many cases. However, mandatory arbitration will be prohibited where the parties have specifically contracted for New York State's arbitration law to apply, rather than the FAA.

While the state/federal conflict is being resolved in the courts, employers should consult with counsel regarding the impact the law may have on their employment agreements, and consider whether to revise their agreements going forward.

Extension of Protections to Non-Employees

Another provision with potentially major implications for many New York employers is the bill's extension of employers' liability for sexual harassment to non-employees. The bill provides that an employer can be held liable for sexual harassment of independent contractors, subcontractors, vendors, consultants, "or any other person providing services pursuant to a contract in the workplace" or the employees of any such person. Liability may apply when the employer, its agents or its supervisors knew or should have known that a non-employee was subjected to sexual harassment in the employer's workplace and failed to take immediate and appropriate corrective action.

This provision of the bill will become effective immediately upon signing by the Governor. Employers utilizing contractors, vendors or consultants should begin to review and consider revising their policies and training to account for the new law's broader scope. While New York City's Human Rights Law generally applies to many independent contractors, non-employee liability is likely a new concept for many employers outside of New York City.

Bottom Line

New York State's budget legislation, expected to be signed into law shortly, contains several measures related to workplace sexual harassment that will impact nearly every employer in New York. To prepare for these changes, New York companies are advised to consult with counsel to review and evaluate: 1) whether anti-harassment policies and training programs need to be implemented and/or updated; 2) practices related to the use nondisclosure agreements in settlement agreements involving sexual harassment claims; 3) provisions of employee arbitration agreements and/or arbitration clauses in employment contracts; and 4) the engagement of independent contractors and other non-employees as part of the company's workforce.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions