New York legislators have recently taken significant steps towards strengthening the sexual harassment laws in both the state and New York City. Employers in these areas should familiarize themselves with the state’s and the city’s new legal requirements and begin immediately to prepare for compliance.
Key Provisions of the New York State Legislation:
Signed into law by Governor Andrew Cuomo on April 12, 2018, the New York State anti-sexual harassment legislation includes the following requirements impacting private employers:
Mandatory Sexual Harassment Policies and Training.
Effective October 9, 2018, all employers must (a) adopt a sexual harassment prevention policy; (b) distribute the policy in writing to employees, and (c) conduct annual sexual harassment prevention training.
Policies and training must include certain mandated information, including: (a) an explanation of sexual harassment and specific examples of inappropriate conduct; (b) detailed information concerning federal, state and local laws and the remedies available to victims of harassment; and (c) an explanation of employees' external rights of redress and the available administrative and judicial forums for bringing complaints.
The New York State Department of Labor will work with the New York State Division of Human Rights to develop a model anti-sexual harassment training program and model anti-sexual harassment policy. Employers can choose whether to adopt the models prepared by the state or develop their own. If an employer chooses to adopt its own policies and training, they must meet or exceed the standards contained in the state models.
Settlement and Arbitration Agreements.
Effective July 11, 2018, settlement agreements may no longer include nondisclosure provisions relating to sexual harassment claims, unless confidentiality is the complainant’s preference. Specifically, the complainant must be given a period of 21 days to consider whether to accept the confidentiality language, and then has seven days to revoke his or her acceptance.
Also effective July 11th, arbitration agreements may no longer include contractual provisions mandating arbitration for any claims or allegations of sexual harassment, except where contrary to federal law. Any such provision presently included in a contract will be deemed null and void, but will not impact any other provision in the contract.
Effective immediately, protections under the state’s anti-sexual harassment laws will extend to non-employees, including contractors, subcontractors, vendors, consultants, or other persons in the workplace, if the employer, its agents, or supervisors knew or should have known that the non-employee was subject to sexual harassment in the employer’s workplace, but failed to take appropriate corrective action.
Key Provisions of the New York City Legislation:
New York City (NYC) employers must be familiar with both the state and city requirements, ensuring they meet the requirements of both laws. Described by Mayor Bill de Blasio as being “among the strictest anti-sexual harassment legislation in the country,” NYC’s anti-sexual harassment legislation includes the following requirements impacting private employers:
Mandatory Anti-Harassment Training.
Effective April 1, 2019, employers with 15 or more employees (including interns) must conduct annual anti-sexual harassment training for all employees, including supervisory employees.
Training must be “interactive” and cover certain topics, including definitions and examples of sexual harassment, bystander intervention, measures to address harassment, and how to bring complaints both internally and with federal, state and local agencies.
Although “interactive training” does not require live, in-person instruction, it must involve trainer-trainee interaction, use of audio-visuals, and/or other participatory forms of training as determined by the NYC Commission on Human Rights (“NYC Commission”).
Training must be conducted on an annual basis for incumbent employees. New employees who work 80 or more hours per year on a full- or part-time basis must receive training after 90 days of their initial hire. If an employee has received training at one employer within the training cycle, he or she would not be required to receive additional training at a different employer until the next annual cycle.
If an employer is subject to training requirements in multiple jurisdictions, it will be in compliance with the NYC law if the annual training addresses the requirements of the NYC law.
Employers must obtain from each employee a signed acknowledgment that he or she attended the training. The signed acknowledgement may be electronic, and employers must keep records of sexual harassment training for 3 years.
Employers will be allowed to use the online anti-sexual harassment training modules developed by the NYC Commission to satisfy the law’s training requirement as long as the module is supplemented with the employer’s own internal complaint process to address sexual harassment claims.
Notice of Anti-Harassment Rights and Responsibilities.
Effective September 6, 2018, employers must conspicuously display an anti-sexual harassment rights and responsibilities poster (in English and Spanish) and distribute an information sheet on sexual harassment to employees at the time of hire, which may be designed by the NYC Commission.
The NYC Commission will post resources on its website by August 7, 2018, including an explanation about sexual harassment as a form of unlawful discrimination, specific examples of sexual harassment and retaliation, information on bystander intervention, and information about filing a complaint through the NYC Commission and other government agencies.
Expansion of Anti-Discrimination Protections under the NYCHRL.
Effective immediately, the NYC law amends the New York City Human Rights Law (NYCHRL) to permit claims of gender-based harassment by all employees, regardless of the size of the employer, and extends the statute of limitations for filing such complaints with the NYC Commission from one year to three years after the occurrence of the alleged harassing conduct.
Next Steps for New York Employers
New York employers should review immediately their anti-sexual harassment policies and training procedures and update them, as needed, to ensure timely compliance with the new law(s). If they do not have any in place, employers must implement compliant policies and training procedures by the deadlines described above. Additionally, employers should revise any existing arbitration agreements and ensure that settlement agreements are compliant going forward. Employers that contract with the state and NYC may have other obligations under the laws.
Please contact Gina Wodarski (firstname.lastname@example.org) or Jackie Piscitello (email@example.com) if you require assistance with developing an anti-harassment policy and/or training modules, amending your current protocols, or otherwise ensuring compliance with both the New York state and city anti-sexual harassment laws.