This month both the State of New York and New York City have passed separate legislation designed to prevent sexual harassment in the workplace. Both laws require employers to conduct mandatory sexual harassment training for all employees.
On April 10, 2018, Governor Cuomo signed the Budget Bill, which contains a mandate for employers in the State of New York designed to prevent future sexual harassment in the workplace. Employers are required to begin complying with the training requirement beginning October 7, 2018. Training must be interactive and include (1) an explanation of what constitutes sexual harassment, (2) examples of conduct that would constitute unlawful harassment, (3) information on state and federal laws concerning sexual harassment and remedies available to victims, and (4) information on employees’ rights and all available forums for adjudicating complaints administratively and judicially.
Employers must also implement a policy on sexual harassment by October 7, 2018. The requirements for the policy go beyond what employers typically include by requiring inclusion of the following:
- 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 New York Department of Labor will publish sample sexual harassment policies and computerized training which employers will be able to implement to comply with these requirements. The New York law also includes several other measures to combat sexual harassment, including:
- Effective immediately, allowing non-employees, including contractors, subcontractors, vendors, consultants or other individuals providing services under a contract in the workplace to sue for “employers” for sexual harassment in the workplace.
- Effective July 11, 2018, prohibiting nondisclosure clauses in agreements to settle claims relating to sexual harassment, 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, prohibiting mandatory arbitration for sexual harassment claims, unless such arbitration clauses are contained in collective bargaining agreements.
- Effective January 1, 2019, requiring entities bidding on state contracts to affirm that they have a written sexual harassment policy and that they provide annual sexual harassment training to their employees.
On April 11, 2018, the New York City Council passed 11 separate bills called the “Stop Sexual Harassment in NYC Act” designed to provide greater protections to prevent workplace sexual harassment. Generally the New York City Human Rights Law (NYCHRL) covers employers with four or more employees; however, all New York City employers will be subject to the NYCHRL with respect to sexual harassment claims. Effective April 1, 2019, the Act requires all private employer in NYC with more than 15 people on its payroll to provide annual interactive anti-sexual harassment training. The annual training requirement may be included as part of a broader anti-discrimination training and needs to include:
- An explanation of sexual harassment as a form of unlawful discrimination under local law;
- A statement that sexual harassment is a form of unlawful discrimination under federal and state law;
- A description of what sexual harassment is;
- The internal complaint process available to employees within such agency;
- The complaint process available through the commission on human rights, the division of human rights and the United State equal employment opportunity commission, including contact information;
- The prohibition of retaliation, pursuant to federal, state and local law and the internal complaint process, and examples thereof; and
- Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention.
New employees must complete training within 90 days of employment, but new employees can carry training over from one employer to another. Employers will need to keep a record of all trainings, including a signed employee acknowledgment (signature can be electronic) for three years. The commission is responsible for developing an online training module that will be made public at no cost to satisfy the training requirement. Employers can use these model training programs or implement their own training program as long as they are equal to or exceed those required by the City Commission.
The Act also requires every employer to conspicuously display an anti-sexual harassment rights and responsibilities poster designed by the commission, in both English and Spanish. Additionally, the Act expands the statute of limitations to allow employees up to three years to file sexual harassment claims with either the NYCHRC or in court. The city law, which will take effect on April 1, 2019, is presently with Mayor Bill De Blasio for signature.
While it will be several months before the State of New York or New York City publish the model training programs, policies or required posters, employers should take the following steps immediately:
- Revising policies to account for potential liability for harassment of consultants or other non-employees in the workplace;
- Review template severance agreements for non-disclosure clauses; and
- Review arbitration agreements for New York employees.