Amid the national movement to uncover sexual harassment in various sectors, New York Gov. Andrew Cuomo on Tuesday said he plans to introduce state legislation to prohibit confidentiality agreements related to sexual harassment claims in government and to void forced arbitration policies in employee contracts.
The wide-ranging proposals by the Democratic governor are part of his legislative agenda, which he is set to unveil on Wednesday, and appear to be in response to the #MeToo movement spurred by sexual harassment and assault allegations levied against movie producer Harvey Weinstein in October and numerous other powerful public figures in Hollywood, government and the media since then, by women and men.
But labor and employment experts queried by the New York Law Journal about the governor’s proposals said that much depended on details of the legislation that have not been disclosed, and that some proposals could result in unintended consequences, such as more litigation and greater public expense.
Among Cuomo’s proposals—which were not accompanied with legislative language and therefore scarce on details—the governor plans on introducing bills to prevent public funding to settle sexual harassment claims against individuals, and mandates that any company doing business with the state disclose the number of sexual harassment adjudications and nondisclosure agreements they’ve executed.
The Democratic governor is also proposing that all branches of state and local government have a uniform sexual harassment policy. Currently, the state Assembly, state Senate and the governor’s office each has its own harassment policy. Both the Senate and Assembly’s policies call for an independent law firm to conduct investigations into harassment allegations.
Cuomo also plans on introducing legislation to prohibit confidentiality agreements relating to sexual assault or harassment, unless it is “the express preference of the victim,” for all public entities and branches of state and local government.
In a statement, Cuomo called 2017 the “long overdue reckoning” in regards to sexual harassment.
“Our challenge in government is to turn society’s revulsion into reform, and we in New York must seize the moment and lead the way. There must be zero tolerance for sexual harassment in any workplace, and we can and will end the secrecy and coercive practices that have enabled harassment for far too long,” Cuomo said.
A spokesman for the governor told the New York Law Journal Tuesday afternoon that the governor’s proposals would also cover contractors, not just state employees. Last month, Cuomo floated the idea of limiting the ability of publicly traded companies and government entities to secretly settle sexual harassment allegations.
While Cuomo’s proposals “has the possibility of being really, really important,” the focus will be on the legislative language, said Kathleen Peratis, a partner at Outten & Golden, where she chairs the sexual harassment policy group.
“I don’t know how these aspirational ideas will translate into legislation,” Peratis told the New York Law Journal.
Among the possible issues that could arise from the proposal is whether victims of sexual harassment would be effectively forced to sign nondisclosure agreements in order to receive an award from the perpetrator, Peratis said.
Kevin Mintzer, who has his own practice in New York City, where he represents victims of discrimination and abuse, and who represented two Assembly employees in sexual harassment cases, echoed Peratis’ concerns over the specifics of Cuomo’s proposals.
Mintzer said Cuomo’s plan to have public officials be liable for sexual harassment settlements, rather than public money, raises concerns over whether a public official would be able to satisfy an award of damages.
“If the state is prohibited from paying for a settlement in its capacity as an employer, does the governor’s proposal mean that victims will be without recourse if an individual perpetrator does not have sufficient personal assets to pay? Will victims be permitted to collect damages from an elected official’s campaign accounts? Depending on the answer to these questions and others, this proposal may wind up being adverse to the interests of sexual harassment victims,” Mintzer said in an email.
Helene Wasserman, a shareholder and labor and employment lawyer at Littler Mendelson in California, said that a possible unintended consequence of voiding arbitration clauses in employee contracts could be that there would be an influx of sexual harassment lawsuits going to court, where the details of the sexual harassment and the identities of the individuals would be made public and taxpayers would still foot the bill.
Ken Pokalsky, the vice president of the Business Council of New York State Inc., said the organization would be closely looking at the arbitration and disclosures for businesses portion of Cuomo’s agenda when legislative language is released.
Cuomo’s proposal to void arbitration clauses in employee contracts will “definitely lead to court challenges,” Peratis said. While limiting arbitration of sexual harassment claims would be a very positive development for victims,” it’s unclear how that can be accomplished in light of the U.S. Supreme Court decision pre-empting state laws that discriminate arbitration decisions, said Mintzer.
The governor’s proposal mandating that companies to disclose the number of sexual harassment adjudications and nondisclosure agreements they’ve executed could fall into a gray area, said Patricia Smith, senior counsel at the National Employment Law Project.
“What do you do with [the information]?” Smith said. “What’s the point of disclosing it?”
“The proposals for the state and local government appear meaningful. But the others are too vague to be judged whether they will be meaningful or not,” Smith added.