The #MeToo movement is proving how social media affects the workplace, in this case the culture. While some commentary is concerned with the validity of claims or support of victims, there is no question that it has significantly increased the pressure on employers to prevent sexual harassment in the workplace. Many employers have responded by increasing workplace training and updating their employment policies.
Those businesses in the Empire State who have not yet chosen to act may have their hand forced by various arms of the government.
The State of New York passed a new law in the Spring of 2018.
The law has several significant components. The most immediately relevant one for many employers requires all employers to conduct annual sexual harassment prevention training. There are no exemptions for smaller businesses in the New York law. The training must include a live trainer available to answer questions and employers must solicit feedback from employees on the training session.
For more information on sexual harassment, visit the EEOC’s website or call 1-800-669-4000.
Another critical aspect of the law bans non-disclosure agreements as part of sexual harassment settlements unless it is my preference of the accuser. The ban applies to the facts underlying the claimed harassment; employers can still negotiate for confidentiality concerning the terms of the agreement itself. The validity of non-disclosure agreements in this context has always been an open question. Such agreements would seem to be considered void for reasons of public policy in many states.
Long-term, though, the provision of the new law that may have the most significant effect is the section banning mandatory arbitration of sexual harassment claims. Employers often prefer mandatory arbitration of employment claims as it helps control costs, ensure confidentiality, and moves claims much faster. The added cost and publicity of lawsuits will help propel employers to settle claims quicker and for more considerable sums.
Finally, the New York State law applies to non-employees too. Previously, New York state anti-discrimination protection did not extend to contractors, consultants, or others. Now, employers can face liability for harassment of a non-employee if they knew or should have known about the harassment and fail to stop it.
Not wanting to be left behind, the City of New York passed its ordinances that apply to employers within its boundaries. Many of the changes mirror the state law, but the city has also taken additional steps such as extending the statute of limitations for filing sexual harassment claims with the New York City Commission on Human Rights.
All employers - regardless of state - should be looking at their policies and procedures concerning sexual harassment and considering employee training on the issue, whether mandated or not. It is also an excellent time to talk to your broker about an Employment Practices Liability policy, which can help cover the costs of lawsuits like these.