Call it the Weinstein effect. Or #MeToo and #TIMESUP momentum. New York State and New York City have passed sweeping laws aimed at preventing sexual harassment in the workplace and limiting the use of mandatory arbitration and non-disclosure provisions in resolving sexual harassment claims.
Here in a nutshell is what New York State and New York City employers need to know about the new laws:
New York State
- Non-employees covered. Traditionally, employers were liable only for sexual harassment of their own employees. But as of April 12, 2018, the New York State Human Rights Law also protects "non-employees," including contractors, subcontractors, vendors, consultants, and any other person who provides services under a contract. An employer is liable for sexual harassment of a nonemployee only if it knew or should have known about the harassment and failed to take immediate and appropriate corrective action.
- No more mandatory arbitration of sexual harassment claims. Starting July 11, 2018, employers will no longer be able to require employees to submit their sexual harassment claims to arbitration, even if the arbitration agreements were already in place before that date. Employers are expected to challenge this law as preempted by the Federal Arbitration Act.
- No more non-disclosure provisions in sexual harassment settlement agreements with an exception. Also starting July 11, 2018, employers may not include non-disclosure provisions in settlement agreements of sexual harassment claims. But there is an exception when the non-disclosure provision is "the plaintiff's preference." To demonstrate this preference, employees must be given 21 days to consider whether to accept the non-disclosure language and then 7 days to revoke their acceptance, similar to the 21/7 day provisions of the federal Older Workers Benefit Protection Act. Unlike the OWBPA, however, the employee cannot waive the 21-day waiting period.
- Annual sexual harassment training, and a policy, are mandatory. Effective October 9, 2018, all employers will be required to provide annual sexual harassment training to all employees, and to adopt a sexual harassment policy. With respect to the training and the policy, employers have two options: They can simply adopt the state's model training program and model sexual harassment prevention policy, which have yet to be issued, or they can create their own training program and prevention policy as long as it equals or exceeds the standards of the state models.
A copy of the New York State budget bill that includes the new sexual harassment provisions is available here.
New York City
Mandatory sexual harassment training. Like the state law, the city law will require employers to provide annual sexual harassment training to all employees and interns, effective April 1, 2019. New employees will be required to receive sexual harassment training within 90 days of hire. Employers will be required to keep training records and signed acknowledgment forms for at least three years. The city's human rights commission will create online training tools for the sexual harassment training. The city law applies to employers of 15 or more employees, including interns. It appears that compliance with the more-stringent city harassment training requirements will also comply with the state harassment training law.
Poster and handout requirements. The city law orders the city's human rights commission to create a sexual harassment rights and responsibilities poster and an information sheet on sexual harassment. Employers must display the poster in a conspicuous place and provide the information sheet to new hires. This law will take effect 90 days after Mayor Bill De Blasio signs the law.
Extension of statute of limitations. The city law extends the statute of limitations for filing "genderbased" harassment claims under the city's human rights law from one year to three years. This law will take effect immediately once Mayor De Blasio signs the law.
Coverage of all employers. The city law's prohibition on gender-based harassment currently applies to employers with four or more employees. Once Mayor De Blasio signs the new law, it will apply to all employers in New York City, regardless of size.
The full text of the NYC sexual harassment training ordinance for private sector employers is available here. The legislation expanding coverage under the NYC Human Rights Law to all employers, regardless of size, is available here. (Click on the "Text" tabs.)