Seyfarth Synopsis: New York Governor Andrew M. Cuomo and New York City Mayor Bill de Blasio have each signed new laws designed to combat workplace sexual harassment. Together, these new laws have resulted in sweeping changes to City and State law governing employers in the State and City.
Both New York State and New York City have enacted comprehensive legislation targeting workplace sexual harassment. On April 12, 2018, Governor Andrew M. Cuomo signed a bill enacting anti-sexual harassment legislation. On May 9, 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act, which is a collection of eleven pieces of legislation. With that law officially on the books, employers in the State and City now know the effective dates of the various provisions the laws enact, with some provisions effective immediately and others taking effect on future dates. Our previous Alerts on these laws are linked here and here, that outlined the key provisions of both the State and City laws. Below is a brief re-cap of the State and City provisions, highlighting their effective dates.
Key Provisions of New York State Law
Extension of Protections to Non-Employees -- Effective Immediately
The law adds Section 296-D to the New York State Executive Law. Section 296-D imposes upon all employers liability for sex-based harassment experienced by non-employees, such as contractors, vendors, or consultants.
Prohibition of Mandatory Arbitration Clauses -- Effective July 11, 2018
The law adds Section 7515 to the Civil Practice Law and Rules (“CPLR”). It provides that, “except where inconsistent with federal law,” employers are prohibited from including, in any contracts with employees, provisions that mandate arbitration for allegations or claims of sexual harassment. The law also declares null and void clauses in existing contracts that mandate arbitration of sexual harassment claims.
Prohibition of Non-Disclosure Agreements -- Effective July 11, 2018
The law adds Section 5-336 to the General Obligations Law and Section 5003-b to the CPLR. These provisions prohibit employers from including an NDA in any settlement of a sexual harassment claim unless the complainant requests confidentiality. If the complainant requests confidentiality, the complainant must have 21 days to consider the terms, and 7 days to revoke the agreement.
Mandatory Sexual Harassment Prevention Policy and Training Program -- Effective October 9, 2018
The law amends the Labor Law by adding Section 201-g, which requires the Department of Labor, in consultation with the Division of Human Rights, to produce a model sexual harassment prevention policy and a model sexual harassment prevention training program.
Every employer must either adopt the model policy and training program, or establish a policy and training program that equals or exceeds the minimum standards provided by the models. Employers are also required to provide all employees with a written copy of the policy and training on an annual basis.
Prevention of Sexual Harassment By Bidders for State Contracts -- Effective January 1, 2019
The law amends the State Finance Law to require that, for every bid made to the State, where competitive bidding is required, the bidder must certify that it has a written sexual harassment policy and provides annual sexual harassment prevention training to all employees. Where competitive bidding is not required, the certification requirement is at the discretion of the department, agency or official.
Key Provisions of Stop Sexual Harassment in NYC Act
Expansion of the Statute of Limitations -- Effective Immediately
The Act amends section 8-109(e) of the City Code to expand the statute of limitations for claims of gender-based harassment from one year to three years after the alleged harassing conduct occurred.
Increased Coverage -- Effective Immediately
The Act amends 8-102(5) of the City Code to expand coverage of sexual harassment cases to employers with fewer than four employees. Previously, only employers with four or more employees were covered by the law.
Sexual Harassment Poster and Information Sheet -- Effective September 6, 2018
The Act amends section 8-107 of the City Code to require employers to display conspicuously an anti-sexual harassment rights and responsibilities poster in employee break rooms or other common areas. Employers will also be required to distribute a sexual harassment information sheet to new employees at the time of hire. The Commission will design and post on its website the poster and information sheet, both of which must be in English and Spanish.
Mandatory Anti-Sexual Harassment Training -- Effective April 1, 2019
The Act amends section 8-107 of the Administrative Code of the City of New York to require employers with 15 or more employees to conduct annual, interactive anti-sexual harassment training for all employees employed in New York City, including supervisory and managerial employees. In order to help employers meet this mandate, the New York City Commission on Human Rights is tasked with creating and posting on its website an online, interactive training module.
What Happens Next?
The provisions of most direct impact for employers are those that concern mandatory arbitration clauses, NDAs, policies, and training.
As we explained in our previous Alert, the Statewide prohibition on mandatory arbitration clauses for sexual harassment claims may be vulnerable to a legal challenge based on preemption by the Federal Arbitration Act. But sorting out that thorny legal issue could take years. In the meantime, and in anticipation of the July effective date of the prohibition, employers that currently have arbitration agreements, or are considering adopting them, should consult with legal counsel to assess whether to revise their agreements and/or policies and to be cognizant of the impact the law may have on pre-existing agreements.
New York employers should also review and revise their standard settlement agreements to ensure that they comply with the State law’s new prohibition of certain NDAs.
The State law will also likely require employers to make substantial revisions to their existing anti-harassment policies and employers without written policies will need to institute them. In addition, all New York State employers will need to comply with the State law’s training requirements. All New York City employers with 15 or more employees will similarly need to comply with both the State and the City training requirements. While there is some overlap between those requirements, the State law has an earlier effective date and certain substantive requirements not mandated by the City law, whereas the City law has certain requirements not necessary under the State law. Compliance with both the training and policy requirements will be easier to assess once the model policy and training modules are published by the applicable agencies.