BY KEN CERINI, CPA //
In light of the high-profile cases in recent news, Gov. Andrew Cuomo has signed new legislation targeting sexual harassment in the workplace.
The new law went into effect April 12 and requires New York State employers to adopt sexual harassment-prevention policies and to conduct annual training on them. It also requires employers to eliminate the use of nondisclosure provisions, unless preferred by the complainant.
The new law also prohibits arbitration provisions pertaining to claims of sexual harassment and expands workplace protections against sexual harassment to non-employees.
Effective Oct. 9, every state employer will be required to have in place a sexual harassment-prevention policy containing certain state-mandated provisions. Those organizations that already have anti-harassment policies in effect will most likely need to update them to conform to the new law.
In addition, employers will need to conduct annual, interactive training meeting the requirements of the new law.
Beginning Jan. 1, 2019, all businesses contracting with the state or any statewide municipality, including nonprofit organizations, will need to certify that they are in compliance with the policy and annual training provisions of the new law.
Effective July 11 of this year, nondisclosure provisions in agreements settling claims of sexual harassment will be prohibited, unless inclusion of the nondisclosure requirement is the complainant’s preference.
The new law does permit a nondisclosure provision to be presented to a complainant in connection with a settlement, but the complainant has just 21 days to consider that nondisclosure provision – and if the complainant wishes to include it past 21 days, all parties must agree in writing.
There is also a required seven-day revocation period following the execution of the agreement, which does not go into force until the revocation period has expired without the complainant’s objection.
Also effective July 11, contractual provisions requiring individuals to resolve sexual harassment claims via arbitration will also be prohibited – though the new law expressly provides that if there’s a conflict between this prohibition and a collective bargaining agreement already in effect, the collective bargaining agreement will control.
This restriction on mandatory arbitration clauses is not anticipated to have a significant impact on New York employers, as it won’t apply in those situations where it’s inconsistent with federal law. This is significant: The Federal Arbitration Act has broad application that impacts most state employers, and only a few employee-arbitration agreements should fall outside of the FAA’s scope.
The new law also extends protections against sexual harassment to non-employees in the employer’s workplace, including contractors, subcontractors, vendors, volunteers, consultants and other individuals providing services pursuant to a contract in the workplace. Unlike other provisions of the law that provide a grace period for employers to comply, the expanded protections for non-employees took effect April 12, the day the law was signed.
New York State has not yet issued information on acceptable policies and training programs, but once issued, employers will need to quickly come into compliance. In the meantime, employers should familiarize themselves and their management teams with the provisions of the new sexual harassment-prevention laws.
Mr. Cerini is a certified public accountant and managing partner of Bohemia-based accounting firm Cerini & Associates LLP.