Both the New York State Legislature and the New York City Council recently adopted new legislation aimed at preventing sex discrimination and sexual harassment in the workplace. The New York City Council has passed the Stop Sexual Harassment in NYC Act (the “Act”), a package of bills targeting and preventing sexual harassment in the workplace. The passing of the Act coincides with the April 12, 2018 signing of the New York State Budget, which includes significant mandates aimed at addressing sexual harassment in the workplace.
New York City
On April 11, 2018, the New York City Council passed the Stop Sexual Harassment in New York City Act, which is expected to be signed by Mayor de Blasio very soon. The new law requires that all private employers with 15 or more employees conduct sexual harassment training to new employees after 90 days of employment and to continue to provide interactive sexual harassment training to all employees on an annual basis. The training must include, but need not be limited to, the following:
- An explanation of sexual harassment as a form of unlawful discrimination under local, state and federal law;
- A description of what sexual harassment is and is not, using practical examples;
- Information on any internal complaint processes available to employees;
- Information on the complaint process available through the New York City Commission on Human Rights and the United States Equal Employment Opportunity Commission, including contact information;
- Examples and information on the prohibition on retaliation;
- Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention
- 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.
Employers must implement a training program before April 1, 2019. The law also requires that employers must keep an electronic record of all trainings, including a signed employee acknowledgement of attendance for at least three years. An employee who has received anti-sexual harassment training at one employer can carry over training to another employer. The New York City Commission on Human Rights will be responsible for creating an online interactive training module to be posted on their website to assist employers.
The new law also requires employers to display an anti-sexual harassment rights and responsibilities poster, as well as provide an information sheet on sexual harassment to new hires. The poster and information sheet will be created by the New York City Commission on Human Rights and be available to employers on the Commission’s website. These requirements will take effect 120 days after the law is signed.
Finally, the law also expands the protection of the New York City Human Rights Law prohibiting sexual harassment to employers with fewer than four employees and lengthens the statute of limitations for filing harassment claims from one to three years.
New York State
On April 12, 2018, Governor Andrew Cuomo signed into law the New York State Budget, which includes several anti-sexual harassment measures. Similar to the New York City law, the new legislation requires that all New York employers provide annual sexual harassment training. The training program must be interactive 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
In addition, employers must implement a sexual harassment policy which, at the very least, must:
- Prohibit sexual harassment and provide examples of conduct that would constitute unlawful sexual harassment
- Include information concerning the federal and state laws concerning sexual harassment, the remedies available to harassment victims, and a statement that there may be applicable local laws
- Include a standard complaint form and procedure for a timely and confidential investigation of complaints
- Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
- 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
- State that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful
The annual sexual harassment training and policy requirements will become effective October 9, 2018.
The New York State Budget also includes several other measures to combat sexual harassment, including:
- Effective immediately, employer liability for sexual harassment extends to non-employees, including contractors, subcontractors, vendors, consultants or other individuals providing services under a contract in the workplace.
- Effective July 11, 2018, nondisclosure clauses in agreements to settle claims relating to sexual harassment will be prohibited, unless the complaining party desires confidentiality and is provided 21 days to consider any such clause and a 7-day revocation period.
- Also effective July 11, 2018, mandatory arbitration for sexual harassment claims will be prohibited, unless the arbitration clauses are contained in collective bargaining agreements.
In light of the new legislation, New York employers should review their existing policies and training programs to ensure compliance.