New York Enacts Sweeping Sexual Harassment Legislation Part Two: Sexual Harassment Certification Requirements and NYS Contract Bidding

This is part two in Barclay Damon's legal alert series on New York State's recently enacted sexual harassment legislation, which impacts all private and public sector employers. As indicated in part one, NYS recently enacted legislation that establishes minimum standards for sexual harassment policies and mandates yearly interactive sexual harassment training for all employees.

Additionally, employers that bid on contracts with the state will have to certify as part of the bid process that the company's sexual harassment policy meets the minimum requirements and that the company conducts yearly interactive sexual harassment training for all of its employees. These requirements have been included in the NYS Finance Law.

Specifically, every competitive bid that is required by statute or regulation and submitted to the state (or any public department or agency of the state) for work or services performed or goods sold must include the following statement by the bidder and affirmed by the bidder as true under the penalty of perjury:

By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing sexual harassment prevention in the workplace and provides annual sexual harassment prevention training to all of its employees. Such policy shall, at a minimum, meet the requirements of section 201-g of the labor law.

Even if a statute or regulation does not mandate competitive bidding, the bid may contain, at the discretion of the department, agency, or official, the above certification.

A bid will not be considered for award nor will any award be made to a bidder that has not complied with the certification rule. If the bidder cannot make the required certification, the bidder must state and explain why the certification cannot be made.

The NYS Finance Law also indicates that any bid submitted by a corporate bidder that contains the required certification will be deemed to have been authorized by the board of directors of the corporate bidder. This authorization will be deemed to include the signing and submission of the bid and the inclusion of the statement to be an act of the corporation.

In sum, employers who bid on contracts will have to certify that their sexual harassment policy and training requirements are in conformance with state law. If they are not and the certification has been made, it may subject the employer to civil and potentially criminal liability.