In mid-April of this year, the legal landscape in New York was fundamentally altered when sweeping measures designed to combat sexual harassment were passed by both the State and the City of New York.
Starting with New York State, on April 12, 2018, Governor Andrew Cuomo signed into the law the New York State Budget, which contains several bills designed to prevent sexual harassment in the workplace. The critical pieces of the New York State Budget addressing sexual harassment include the following:
- Effective April 12, 2018, the New York State Human Rights Law is amended to grant sexual harassment protection to non-employees, including contractors, subcontractors, vendors, consultants, and others who provide services under a contract.
- Effective July 11, 2018, employers in New York are prohibited from requiring employees to submit their sexual harassment claims to mandatory arbitration, even if agreements to arbitrate such claims were in place prior to the effective date of the law. It is anticipated that employers will challenge this legislation as being preempted by the Federal Arbitration Act.
- Also effective July 11, 2018, employers are prohibited from including a non-disclosure provision in settlements agreements for sexual harassment claims. However, where the plaintiff/complainant prefers the inclusion of such a provision, he/she shall have 21 days to consider and accept the non-disclosure/confidentiality provision, and he/she shall then have 7 days to revoke acceptance of the agreement with a confidentially provision once signed.
- Starting October 9, 2018, all employers in New York (regardless of size) will be required to adopt a written sexual harassment policy and conduct annual trainings which must be “interactive”. Employers will have the option of adopting the State’s model training program and policy (which will be developed by the Department of Labor, but have not yet been released), or employers can create their own policy and training program, which must equal or exceed the State’s requirements. At a minimum, the policy must:
- Prohibit sexual harassment and provide examples of prohibited conduct;
- Include information concerning federal and state laws on sexual harassment and remedies available to victims;
- Include a model complaint form;
- Inform employees of rights and redress available to them and all forums where disputes can be adjudicated; and
- State that sexual harassment is a form of employee misconduct and sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and management personnel who knowingly allow such behavior to continue.
Similarly, on April 11, 2018, New York City passed the “Stop Sexual Harassment in NYC Act”, a package of bills designed to combat and prevent sexual harassment in New York City. The “Stop Sexual Harassment in NYC Act” includes the following bills/provisions:
- Effective immediately, the New York City Human Rights Law will apply to all employers in New York City regardless of size with regard to any “unlawful discriminatory practice based on a claim of gender-based harassment…” This stands in contrast to other provisions of the New York City Human Rights Law, which provide protections to employers with 4 or more employees. The law will also extend the statute of limitations for filing complaints with the New York City Commission on Human Rights (the “Commission”) from 1 year to 3 years.
- The Commission will be required to design an anti-harassment rights and responsibilities poster (in both English and Spanish), which New York City employers must display in a conspicuous location. Employers will also be responsible for providing an information sheet to employees on sexual harassment which is distributed at the time of hire and may be included in the employee handbook. The information sheet shall also be available in English and Spanish. This provision takes effect 120 days from the law’s signing, provided the Commission takes all appropriate actions.
- Effective April 1, 2019, all employers with 15 or more employees in New York City must conduct annual sexual harassment trainings. These trainings must occur within 90 days of hire, must be “interactive”, and employers are required to retain records of attendance for 3 years. The training must also include:
- An explanation of sexual harassment as a form of unlawful discrimination under local law;
- A disclaimer that sexual harassment is also a form of unlawful discrimination under state and federal law;
- A description of what sexual harassment is;
- The complaint process at the various New York agencies and the EEOC;
- A provision prohibiting retaliation; and
- A statement regarding the importance of by-stander intervention in any incidents of sexual harassment.
While conducting sexual harassment trainings has always been a recommended “best practice” for all employers regardless of location, New York joins only a handful of states including California, Connecticut, and Maine in requiring such trainings. All New York State employers should ensure that their sexual harassment policies and trainings are firmly in place by the October 9, 2018 deadline. Additionally, to the extent they have not already complied with the overlapping New York State requirements, all New York City employers should also be prepared to meet the April 1, 2019 deadline for the City’s requirements.