The state of New York and New York City both recently moved to address issues involving sexual harassment in the workplace by passing a number of different laws that will increase awareness and expand protections for instances of sexual harassment at work. Below are the key takeaways from the new state and city laws that employers need to know.
New York State
The New York state laws are the result of anti-sexual harassment legislation included in the state’s 2019 budget, which was signed into law by Governor Cuomo earlier this month.
Mandatory arbitration of sexual harassment claims is now prohibited under state law, effective July 11, 2018. This prohibition means that employers cannot require employees to submit sexual harassment claims to arbitration, even if the arbitration agreement was executed before this new law. However, many believe that this provision may be preempted by the Federal Arbitration Act. Employers will need to await the first legal challenge to this provision.
Non-employees are now covered under state non-discrimination law, effective as of April 12, 2018. Coverage under the New York State Human Rights Law is now extended to non-employees, such as contractors, subcontractors, vendors, consultants, and other persons who provide services under a contract. Employers will be liable for sexual harassment involving these types of non-employees if the employer knew or should have known about the harassment and failed to take immediate and appropriate corrective action.
Non-disclosure provisions will be prohibited from settlement agreements for sexual harassment claims as of July 11, 2018 without the express consent of the complaining party. To demonstrate that the non-disclosure provision is the complaining party’s preference, he or she must be given 21 days to consider whether to accept the non-disclosure language and then 7 days to revoke acceptance. The employee cannot waive 21 and 7 day periods.
Mandatory annual sexual harassment training will be an effect of the new law that all employees will experience. Effect October 9, 2018, all employers will be required to provide annual sexual harassment training to all employees. The New York State Division of Human Rights will develop a training program and draft a model sexual harassment policy for employers to use. Alternatively, employers can create their own policy or training program, as long as they equal or exceed the standards in the state’s model. The law goes into detail about the types of topics that must be included in both a policy and training program, including but not limited to an explanation of sexual harassment, examples of sexual harassment, and information on complaint procedures, rights, and remedies available to victims of sexual harassment, and information on the available judicial and non-judicial forums where complaints can be brought.
New York City
New York City quickly followed the state’s lead, with the City Council passing the “Stop Sexual Harassment in New York City Act” that currently awaits Mayor De Blasio’s expected signature.
The law imposes a mandatory poster and handout requirement effective 120 days after the mayor signs the law. Employers would be required to display the sexual harassment rights and responsibilities poster created by the New York City Human Rights Commission in a conspicuous place. It would also require employers to provide an information sheet on sexual harassment, also to be developed by the Commission, to new employees at the time of hire.
The statute of limitations period is extended from one to three years for gender-based harassment claims. This change goes into effect immediately upon the signing of the bill by the mayor.
All employers would be covered by anti-harassment laws. The existing city law prohibiting gender-based harassment would now apply to all employers, regardless of size (the existing law only applies to employers with 4 or more employees). This change would become effective immediately upon the mayor’s signing.
Public sexual harassment information will be posted by the New York City Human Rights Commission. Effectively immediately after the mayor’s signing, the Commission will be required to post resources about sexual harassment on its website that covers topics such as examples of sexual harassment, the Commission’s complaint process, anti-retaliation examples, and bystander intervention education .
Mandatory annual sexual harassment trainings would also be required by the new city law. Effective April 1, 2019, employers with 15 or more employees (including interns) will be required to provide all employees and interns an annual and interactive sexual harassment training. The interactive requirement can be satisfied by a live or in-person instructor, but can also be satisfied through an online program or other participatory forms of training. The New York City Human Rights Commission will create online training tools for the sexual harassment training that will be available for free. New employees are required to receive the training within 90 days of hire. Unlike with the state law, under the city law employers must keep records and signed acknowledgements from employees of training completion for at least 3 years.
Like the state law, the city law contains specific types of topics that must be included in the annual training, including:
- An explanation of sexual harassment as a form of unlawful discrimination under local law;
- A statement that sexual harassment is also a form of unlawful discrimination under state and federal law;
- A description of what sexual harassment is, using examples;
- Any internal complaint process available to employees through their employer to address sexual harassment claims;
- The complaint process available through the commission, the division of human rights and the EEOC;
- The prohibition of retaliation and examples of it;
- Information on bystander intervention; and
- The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.
In light of the new laws for New York state employers, and the pending laws for New York City employers, affected employers should review their policies, procedures, and trainings to ensure compliance. Even if your company already has trainings in place, those trainings should be reviewed for compliance with the minimum standards set by the new state and city laws. Attorneys in Saul Ewing’s Labor and Employment group can assist in reviewing policies, agreements, and trainings to ensure compliance with the new state and city laws.