New York City and State Pass Sexual Harassment Legislation with New Requirements for Businesses
Bills passed by the New York City Council and New York State legislature in April aim to curb sexual harassment in the workplace through a variety of measures, including an end to mandatory arbitration of sexual harassment claims and limitations on confidential settlements, as well as new requirements for businesses to train employees and implement anti-harassment policies. Governor Cuomo signed the state package into law on April 12, 2018, and Mayor DeBlasio signed the NYC Council package on May 9, 2018.
Stop Sexual Harassment in NYC Act
Posting and Distributing Information (effective September 6, 2018)
All employers will be required to conspicuously display an anti-sexual harassment rights and responsibility poster and will have to distribute an information sheet to new hires, both of which will be designed by the NYC Commission on Human Rights.
Training Requirement (effective April 1, 2019)
Businesses with 15 or more employees (including interns) will have to conduct annual, interactive, anti-sexual harassment training for all employees (including supervisory and managerial staff) and track their compliance, keeping a record of the training for at least three years. The training must be interactive, though an online training can be used. The NYC Commission on Human Rights will create a training module that can be used to satisfy these requirements.
Trainings will be required to include specific content, such as complaint procedures available internally and through government agencies, bystander intervention and the specific responsibilities of supervisors and managers to prevent sexual harassment and retaliation.
New employees must receive the training with 90 days of initial hiring.
Number of Employees Irrelevant, Longer Statute of Limitations (effective immediately)
The prohibition on gender-based harassment will be applied to all employers, regardless of how many employees they have.
The statute of limitations for gender-based harassment will increase from one year to three years from the time of the alleged harassment.
New York State Anti-Harassment Legislation
End to Mandatory Arbitration, Non-Disclosure under Certain Circumstances (effective July 11, 2018)
The new law prohibits mandatory arbitration clauses in employment contracts for claims of sexual harassment. It is widely expected that this provision will be challenged, given United States Supreme Court precedent supporting mandatory arbitration clauses.
Confidentiality requirements will not be allowed in sexual harassment claim settlements unless that is the preference of the complainant. In order to ensure that a complaint prefers a confidential settlement, she or he will have 21 days before execution of a settlement to mull the confidentiality condition, and once a settlement is executed, the complainant has an additional seven days in which she or he may revoke the agreement.
Sexual Harassment Claims by Non-Employees (effective immediately)
Employers may be liable for claims of sexual harassment made by contractors, vendors, consultants and others who provide contract services to the employer.
Model Sexual Harassment Prevention Policy (effective October 9, 2018)
The NYS Department of Labor will create a model management policy on sexual harassment. Employers will be able to adopt the standard language in the policy or create their own, as long as it meets or exceeds the standards to be provided by NYSDOL. The standard policy will include a definition of sexual harassment, examples of prohibited conduct, remedies and forms of complaint resolution available to workers, among other items.
Model Sexual Harassment Training Program (in effect, training must be complete by October 9, 2019)
NYSDOL will also create an interactive model training program that will include a definition of sexual harassment and examples of prohibited conduct, as well the responsibilities of supervisors and managers in preventing misconduct in the workplace, among other items. The training must be delivered annually for all employees, and employers will have to use either NYSDOL training program or another that meets or exceeds the requirements set by NYSDOL.
The City and State requirements listed above are not consistent in their content, and if you are a New York City employer you will need to ensure compliance with both sets of new laws.
If you are looking to update your anti-harassment policies and training programs, this legislation will only require that you address sexual harassment, but it is well worth ensuring your training and policies cover all protected categories in your jurisdiction, and a good employment law practice will do that for you.
The training requirements for businesses include specific requirements for training managers and supervisors, noting their unique role in preventing and addressing harassment in the workplace. Supervisors and managers have responsibilities to prevent and promptly respond to misconduct. Having your supervisors and managers understand how to respond to a complaint of harassment, and how to identify harassing conduct that they observe will be a crucial part of successful implementation of these new requirements.