What You Need to Know: Important Changes Under Pending Legislation

The June 19 bills build upon a slate of laws that Gov. Cuomo signed last year amid the peak of the #MeToo movement. These proposals apply statewide, not just to government employees. Once in effect, the legislation will:

• Lower the standard for bringing a hostile work environment claim. A “severe or pervasive” standard will no longer be applied for proving harassment in New York state. Instead, harassment based on any protected characteristic is unlawful so long as the conduct “subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more” protected characteristics.
• Increase employer liability and compliance standards. Companies no longer will be able to avoid liability for the behavior of supervisors when the employee does not file a complaint and the alleged harassment did not result in tangible employment action. Instead, the new law provides that “[t]he fact that the individual did not make a complaint about the harassment to the employer shall not be determinative of whether the employer shall be liable.” In discrimination cases, employers will now be liable for attorney fees and punitive damages will be available as a remedy in all cases of employment discrimination related to private employers. In addition, companies will need to ensure that anti-harassment training is provided in multiple languages.
• Extend protections to non-employees for all forms of discrimination. “Non-employees” (including contractors, vendors, or consultants) are covered for all forms of discrimination, irrespective of the protected characteristic.
• Extend prohibition of nondisclosure agreements in settlement agreements for all discrimination cases, not just claims of sexual harassment (unless confidentiality was the claimant’s preference).
• Extend the statute of limitations for sexual harassment claims. The statute of limitations will be extended from one to three years for employees to file a claim of harassment under state law with the State Division of Human Rights.

Taken together with anti-harassment measures implemented in October 2018, it is clear New York state wants to make it easier for claims to be brought forward and also encourage employers to take a more proactive approach when it comes to rooting out sexual harassment in the workplace.

What You Need to Do: How to Prepare for These Changes, as well as the October 9, 2019 Training Deadline

October 2018 regulations required every employer in New York State to adopt a written sexual harassment prevention policy and institute annual anti-harassment training for employees. Many companies have already taken steps to train their people and update written policies.

However, given that the burden of proof may soon be lower and timeframe for reporting extended, employers in New York State will also want to:

• Take steps to translate the current anti-harassment policy into commonly used languages such as Spanish
• Complete a risk assessment to gauge how the new standards and extended statute of limitations may potentially impact the company’s risk profile
• Assess the scalability of the company’s current resources for reporting and investigation of workplace harassment claims
• Revisit the organization’s reporting process and investigation protocols to ensure Human Resources and other team members on are up-to-speed on new legal requirements, once enacted

How StoneTurn Can Help

At StoneTurn, we provide in-depth risk assessments and can outline best practices for the investigation of workplace harassment claims.

In addition, our experienced, multidisciplinary team can assist with reviewing your current sexual harassment policies, and work with you to revise them to meet the latest standards. We also provide customized sexual harassment prevention training for your workforce that is compliant with the New York State requirements.