On April 12, 2018, New York became the latest state to implement an overhaul of its sexual harassment laws in the wake of the #MeToo movement. As a result, New York State’s laws surrounding sexual harassment now call for greater employee awareness, more accountability, and strict standards for sexual harassment workplace policies and employee training. In addition, a similar bill is expected to be signed into law within the coming days in New York City. Employers must take action to ensure that they are in compliance with any changes that have already taken effect and are prepared for those that have yet to become effective.
New York State Legislation
On April 12, 2018, Gov. Andrew Cuomo signed into law the State Budget for 2019, which includes various new laws aimed at addressing the ongoing issue of sexual harassment in the workplace. Each component has its own effective date. In particular, the recently signed bill will have various effects on existing State law, including the following:
- Imputation of Liability for Sexual Harassment Committed Against Contractors and Other Non-Employees – Effective immediately, the law imposes liability upon employers for sex-based harassment experienced by non-employees, such as contractors, freelancers, vendors consultants or any other worker providing services pursuant to a contract. Previously, only an employee of the employer could sue it for any form of harassment or discrimination.
- Reimbursement of Public Funds – Effective immediately, a public employee found personally liable in a final judgment or an adjudicated award for intentional wrongdoing related to a claim of sexual harassment will be required to reimburse his or her employer for that individual’s proportionate share of the total monetary award paid by any state or public entity to a plaintiff. Reimbursement must be made within 90 days of that payment. This applies to public employees at any level and includes unpaid and former employees.
- Prohibition on Mandatory Arbitration of Sexual Harassment Claims – Effective July 11, 2018, the New York Civil Practice Law and Rules (“CPLR”) will be amended to prohibit agreements that require sexual harassment claims to be submitted to mandatory arbitration, unless the mandatory arbitration clause is contained in a collective bargaining agreement. However, in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), the United States Supreme Court ruled that “when state law prohibits outright the arbitration of a particular type of claim … the conflicting rule is displaced by the [Federal Arbitration Act].” Therefore, it is important to note the possibility that this provision may be preempted by federal law. We expect that there will be case law fairly quickly after this provision goes into effect, which hopefully will provide clarity.
- Restrictions Surrounding the Settlement of Sexual Harassment Claims – Effective July 11, 2018, defendants may not use non-disclosure/confidentiality provisions in the resolution of any sexual harassment claims, unless the inclusion of such confidentiality provision is the preference of the complainant and the complainant is provided (a) a period of 21 days prior to execution of the agreement to consider the confidentiality clause and (b) a seven-day revocation period immediately following execution of the agreement.
- Model Anti-Sexual Harassment Policies – Beginning October 9, 2018, all New York employers will be required to implement and annually distribute to all employees anti-sexual harassment policies that either meet or exceed the minimum standards established by the model sexual harassment prevention policy that the New York State Department of Labor (“NYSDOL”) and the New York State Division of Human Rights (“NYSDHR”) have been tasked with creating. Although it has yet to be published, the model policy will: (a) prohibit and provide examples of sexual harassment; (b) include references to federal and state laws concerning sexual harassment and a statement that there may be applicable local laws; (c) inform employees of the rights and remedies available to harassment victims, including all forums available for adjudicating sexual harassment complaints judicially and administratively; (d) include a standard complaint form and procedure for confidential investigation of complaints; (e) include a statement that sexual harassment is considered employee misconduct and that any employee engaging in sexual harassment, and any supervisory/managerial employee who knowingly allows such conduct, will be sanctioned; and (f) include a statement that retaliation against individuals who complain of sexual harassment or who testify or otherwise assist in any proceeding is unlawful.
- Model Anti-Sexual Harassment Training – Also beginning October 9, 2018, all New York employers will be required to implement an interactive model sexual harassment prevention training program that either meets or exceeds the minimum standards established by the model sexual harassment training model that NYSDOL and the NYSDHR have been tasked with creating, and to use it to provide anti-sexual harassment training to all of its employees on an annual basis. Although it also has yet to be published, the model training program will include: (a) an explanation as to what constitutes sexual harassment and provide examples of such conduct; (b) references to federal and state laws concerning sexual harassment; (c) information concerning the rights and remedies available to harassment victims, including all forums available for adjudicating sexual harassment complaints judicially and administratively; and (d) information addressing conduct by supervisors and any additional responsibilities of such supervisors.
- State Contractors Are Required to Have Written Sexual Harassment Policies and Must Provide Sexual Harassment Training to all of its Employees – Beginning January 1, 2019, a contractor submitting a bid for a state contract will be required to affirm that it has implemented a written workplace policy addressing sexual harassment prevention and that it provides annual training for all employees.
New York City Legislation
On April 11, 2018, the New York City Council passed the Stop Sexual Harassment in NYC Act (the “Act”), which is a package of bills that, like its State counterpart, are intended to address and prevent sexual harassment in the workplace. The bill is currently awaiting the signature of Mayor Bill de Blasio, but is expected to be signed in the coming days. Similar to the new State legislation, the Act will have significant effects on current City laws, including the following:
- Amendment of the New York City Human Rights Law to Permit Gender-Based Harassment Claims Against Any Employer, Regardless of Size – While the current anti-discrimination provisions of the New York City Human Rights Law (“NYCHRL”) only apply to employers with more than three employees, upon the signing of the Act into law the NYCHRL will be immediately amended to allow gender-based harassment claims against any employer, regardless of the number of employees.
- Extension of the Statute-of-Limitations for Filing a Gender-Based Harassment Claim with the New York City Commission on Human Rights (“NYCCHR”) – Effective immediately upon the signing of the Act into law, the statute-of-limitations for filing an administrative complaint with the NYCCHR for gender-based harassment will be increased from one to three years from the date of the alleged harassment – making it coextensive with the current three-year statute-of-limitations that applies to gender-based harassment claims brought in state court.
- City Contractors Are Required to Provide Sexual Harassment Policies – Beginning 60 days after the bill is signed into law, city contractors will be required to include their practices, policies, and procedures “relating to preventing and addressing sexual harassment” as part of an existing report required for certain contracts pursuant to the City Charter and corresponding rules.
- Posting of Sexual Harassment Resources on the NYCCHR’s Website – Beginning 90 days after the bill is signed into law, the NYCCHR will be required to post sexual harassment resources on its website, including information about filing an administrative complaint with the NYCCHR and other government agencies, information about sexual harassment as a form of unlawful discrimination and information on bystander intervention.
- Display of Poster Concerning Anti-Harassment Rights and Responsibilities – Beginning 120 days after the bill is signed into law, New York City employers will be required to conspicuously display a bi-lingual anti-sexual harassment rights and responsibilities poster, which will be designed by the NYCCHR and available on its website, in employee breakrooms or other common places where employees gather.
- Distribution of Sexual Harassment Information Sheet to New Hires – Beginning 120 days after the bill is signed into law, New York City employers will be required to distribute an information sheet on sexual harassment to new hires, which will be designed by the NYCCHR and available on its website.
- Annual Employee Training – Effective April 1, 2019, private employers with 15 or more employees will be required to annually conduct “interactive” anti-sexual harassment training for all employees (including interns and managerial and supervisory employees). As compared to its State counterpart, the Act provides a similar but lengthier non-exhaustive list of subjects that annual trainings must cover and requires that trainings be participatory in nature, whether accessed through computer or with a live instructor. To assist employers in meeting this requirement, the law tasks the NYCCHR to create a series of online interactive training modules for employers’ access and use. Employers will not need to train an employee until after 90 days of employment, nor will they need to retrain an employee who has received training at another employer within a particular time-frame. To demonstrate compliance, employers will be required to maintain training records for at least three years, including signed employee acknowledgment forms.
In light of these recent and impending legal changes, all New York employers should review all existing workplace policies, training programs and form agreements to ensure that they comply with the new requirements, some of which will take effect immediately, others of which will be phased in over the course of the next year. While both levels of legislation leave many questions unanswered from definitional and application standpoints, hopefully additional guidance will follow.