Both the New York State Legislature and the New York City Council have adopted new legislation aimed at preventing sex discrimination and sexual harassment in the workplace. They each place new obligations on employers which are being phased in over time. Here’s what you need to know:
New York State Sexual Harassment Legislation Update
On April 12, 2018, New York Governor Andrew Cuomo signed into law the New York State Budget, which includes several significant measures directed at both private and government employers regarding sexual harassment in the workplace. We don’t know yet what the penalties are for noncompliance, but we can expect fines and other forms of penalties. Here are highlights which may directly impact your organization.
Sexual Harassment Protections Extended to Non-Employees
Effective Immediately: The Budget extends liability under the New York State Human Rights Law and prohibits sexual harassment of “non-employees in the employer’s workplace,” including “contractors, subcontractors, vendors, consultants or other persons providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.”
Nondisclosure Agreements for Sexual Harassment Claims Prohibited Without Complainant Consent
Effective July 11, 2018: The Budget amends the General Obligations Law (GOL) and the Civil Practice Law and Rules (CPLR) to prohibit any settlement, agreement or other resolution directly relating to sexual harassment claims unless (i) it is the complainant’s preference to include such a confidentiality provision; (ii) the complainant has been given 21 days to consider the confidentiality provision; and (iii) the complainant is given 7 days in which to revoke a signed agreement containing a non-disclosure provision. The nondisclosure clause does not become effective or enforceable until after the 7-day revocation period has expired.
Mandatory Arbitration Agreements for Sexual Harassment Claims Prohibited
Effective July 11, 2018: The Budget amends the CPLR to render void mandatory arbitration agreements that require the parties to submit claims relating to sexual harassment to mandatory binding arbitration and would insulate from “independent court review” any fact-finding made by, or the final determinations of, an arbitrator relating to claims of sexual harassment. However, mandatory arbitration agreements that include sexual harassment disputes remain enforceable with respect to all other claims.
Because the U.S. Supreme Court has routinely held that state laws that expressly identify a category of non-arbitrable state law claims are preempted by the Federal Arbitration Act, it remains to be seen whether this provision will ultimately be enforceable.
Required Sexual Harassment Prevention Policies
Effective October 9, 2018: Employers must establish a sexual harassment prevention policy. The new legislation tasks the New York State Department of Labor (NYSDOL) to collaborate with the New York State Division of Human Rights (NYSDHR) to create a model sexual harassment prevention policy, and requires ALL New York employers to either implement or use in devising their own written policies that must meet or exceed the minimum standards established by the NYSDOL. The sexual harassment prevention policy is required to contain, at the very least, the following elements:
- A statement prohibiting sexual harassment;
- Examples of prohibited conduct that would constitute sexual harassment;
- Information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims, along with a statement that there may be additional applicable laws;
- A standard complaint form;
- The procedure for timely and confidential investigation of complaints;
- A statement informing employees of their rights of redress and available forums for adjudicating sexual harassment complaints administratively and judicially;
- A statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals engaging in sexual harassment and managers and supervisory personnel who knowingly allow such behavior to continue; and
- A statement that retaliation against individuals reporting sexual harassment or who testify or assist in any proceeding is unlawful.
Such model policy shall clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue. Employers are required to develop and distribute a compliant written policy by October 9, 2018.
Required Sexual Harassment Training
Effective October 9, 2018: The Budget also requires the NYSDOL and NYSDHR to create a model interactive sexual harassment prevention training program that employers can either implement or use to create their own training program. Employers must conduct trainings on an annual basis for ALL employees, including managerial and supervisory employees. The training program must be interactive, no less than two hours in length, and at a minimum contain:
- An explanation of what constitutes sexual harassment
- Examples of conduct that would constitute unlawful harassment
- Information on state and federal laws concerning sexual harassment and remedies available to victims
- Information on employees’ rights and all available forums for adjudicating complaints administratively and judicially
Public Employees Required to Reimburse State for Sexual Harassment Payments
Effective July 11, 2018: Employees of the state or public entities, including elected officials, who are found to have engaged in sexual harassment are required to reimburse the state or public entity for any payment made for “an adjudicated award.” The law does not apply to pre-judgement settlements. The employees' pay can be withheld or a money judgement enforced against them if they are no longer employees. The law applies to employees at every level and includes former and unpaid employees.
Required Sexual Harassment Certification in Government Bids
Effective January 1, 2019 New York State will require that bids on specified state contracts must contain language affirming that the bidding entity has implemented a written policy addressing sexual harassment in the workplace and that it provides annual sexual harassment prevention training to all of its employees.
New York City Sexual Harassment Legislation Update
On April 11, 2018, the New York City Council passed the Stop Sexual Harassment in NYC Act (the “Act”), a package of bills targeting and preventing sexual harassment in the workplace. Signed into law by Mayor de Blasio on May 9, 2018, the Act will, among other mandates, require annual sexual harassment training for certain New York City employees. The new law provides, as follows:
NYCHRL Definition Expanded
Effective Immediately: While the New York City Human Rights Law (“NYCHRL”) generally covers employers with four (4) or more employees, all New York City employers, regardless of the number of individuals they employ, will be subject to the NYCHRL with respect to sexual harassment. Thus, for sexual harassment claims only, the law expands the definition of “employer” to include all New York City businesses and entities that employ at least one individual within New York City.
Statute of Limitations Period Extended for NYC Sexual Harassment Claims
Effectively Immediately: The Stop Sexual Harassment in NYC Act extends the statute of limitations period for sexual harassment claims. Under the NYCHRL, aggrieved individuals have one year from the alleged discriminatory practice to file a complaint with the New York City Commission on Human Rights and three (3) years from the alleged incident to file a claim in court. Effective immediately, the new law allows individuals up to three (3) years to file sexual harassment claims with either the City Commission or in court; the statute of limitations period for all other discrimination or harassment claims remains unchanged.
Anti-sexual Harassment Posters
Effective 120 days After the Act Becomes Law: Under the Act, the City Commission must create anti-sexual harassment posters in both English and Spanish, along with an information sheet on sexual harassment. All employers will be required to display the poster in a conspicuous location where employees gather, and distribute the information sheet to employees at the time of hire.
Required Interactive Anti-sexual Harassment Training
Effective April 1, 2019: All private employers with fifteen (15) or more employees in New York City will be required to conduct annual anti-sexual harassment interactive training. The City Commission is charged with creating interactive training programs. Employers can use the model training programs created by the City Commission to satisfy the training requirements set forth in the Stop Sexual Harassment in NYC Act, or they can implement their own policies and training programs provided that such policies and programs equal or exceed the minimum standards set by City Commission.
Further, all employees, both part-time and full-time employees, who work more than 80 hours in a calendar year, will be required to receive training 90 days after being hired. For at least three (3) years, employers are required to keep records of the training they conduct including signed employee acknowledgments of such training.
Under the Act, the term “interactive training” means participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory forms of training as determined by the commission. However, such “interactive training” is not required to be live or facilitated by an in-person instructor in order to satisfy the provisions of this subdivision.
The Act provides a lengthier non-exhaustive list than the state’s law of subjects that annual trainings must cover. The training shall include, but need not be limited to, the following:
- 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 United States equal employment opportunity commission, including contact information;
- The prohibition of retaliation and examples thereof;
- Information concerning bystander intervention, including but not limited to any resources that explain how to engage in 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.
Under the Act, employers will not need to train an employee until after 90 days of employment, nor retrain an employee who has received the required training at another employer within a particular training cycle. In addition, an employer who is subject to training requirements in multiple jurisdictions may provide proof of compliance with the New York City law, as long as the employer’s sexual harassment training is provided annually and contains the mandated training areas discussed under the law.
Sexual Harassment Information Online
Effective 90 days After the Act Becomes Law: The administrative code of the city of New York is amended by requiring that the Commission post conspicuously on the commission’s website online resources about sexual harassment, including but not limited to:
- Information that sets forth in simple and understandable terms:
(a) An explanation that sexual harassment is a form of unlawful discrimination under local law;
(b) Specific descriptions and examples of activities which may be sexual harassment;
(c) A description of the commission’s complaint process, and how to contact the commission;
(d) A list of alternate and additional government agencies for filing complaints about sexual harassment, and the websites for such agencies, to the extent available;
(e) An explanation that retaliation, including but not limited to retaliation for complaints concerning allegations of sexual harassment, is prohibited and examples of activities which may be retaliation for such complaints; and
(f) Bystander intervention education and the importance of taking action to prevent workplace sexual harassment.
- An interactive tool describing each step of the complaint process available through the commission, from when a complaint is filed to when a determination is made on such complaint.