In April, both the New York State Legislature and the New York City Council passed new workplace anti-sexual harassment legislation. Spurred by the rise of the #MeToo and Time’s Up movements, and in the wake of several high profile sexual harassment situations, these laws aim to reduce and prevent sexual harassment in the workplace. The New York City Council passed eleven separate bills, called the Stop Sexual Harassment in NYC Act (“the Act”) on April 11, 2018. The Act awaits the final signature of Mayor Bill de Blasio. On April 12th, New York Governor Andrew Cuomo signed into law the New York State Budget Bill for Fiscal Year 2019, which details existing state and citywide employer obligations. This article will provide a summary of those obligations and outline what employers need to know.
New York State Legislation
The New York State Budget Bill for Fiscal Year 2019 contains several new sexual harassment laws (with various effective dates) that will impact all New York State employers, including a mandate for employers in the State of New York to prevent sexual harassment in the workplace. Perhaps the biggest change is the law’s prohibition of the inclusion of nondisclosure provisions in settlement agreements for sexual harassment claims. Effective July 11, 2018, an employer may only include confidentiality language in a settlement agreement when it is the settling individual’s preference. Further, the settling individual must be given a twenty-one-day period to consider whether to accept the confidentiality language in the nondisclosure provision, and, after signing the agreement, the settling individual has seven days to revoke the acceptance. However, this law does not bar provisions that require the settling individual to maintain the confidentiality of the terms of the agreement.
This new legislation also prohibits provisions that mandate arbitration for allegations of sexual harassment, “[e]xcept where inconsistent with federal law.” It is unclear whether this mandatory arbitration prohibition will be preempted by the Federal Arbitration Act, but this portion of the law also goes into effect on July 11, 2018.
Taking effect immediately, the new law expands the anti-sexual harassment protections to certain non-employees. Employers will now be liable if they permit sexual harassment of contractors, subcontractors, vendors, consultants, or other persons providing services in the workplace, if the employer, its agents, or supervisors knew, or should have known, that the non-employee was subjected to sexual harassment in the employer’s workplace, and failed to take immediate and appropriate corrective action.
Effective October 9, 2018, the new law also requires employers in the State of New York to conduct annual sexual harassment prevention training. The training program must be interactive (either online or in person) and, at a minimum, include: (1) an explanation of what constitutes sexual harassment; (2) examples of conduct that would constitute unlawful sexual harassment; (3) information on state and federal laws addressing sexual harassment and remedies available to victims; and (4) information concerning employees’ rights and available forums for resolving harassment complaints.
Further, effective October 9, 2018, the law requires employers to adopt a sexual harassment prevention policy that must be distributed to employees and must: (1) prohibit sexual harassment and provide examples of prohibited conduct that would constitute unlawful sexual harassment; (2) provide 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; (3) include a standard complaint form; (4) include a procedure for a timely and confidential investigation of complaints; (5) provide information concerning employees’ rights and available forums for resolving harassment complaints; (6) clearly state that sexual harassment is 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; and (7) state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
In an effort to provide direction, the law instructs the New York State Department of Labor (NYSDOL) and the New York State Division of Human Rights (NYSDHR) to work together to develop model sexual harassment policies and model training programs. Employers’ sexual harassment prevention policies must meet or exceed the minimum standards established by the NYSDOL and NYSDHR model policies and training.
New York City Legislation
Once Mayor de Blasio signs the bill, the Stop Sexual Harassment in NYC Act will go into effect on April 1, 2019. Introduction 632-A of the Act requires private employers with fifteen or more employees to conduct interactive anti-sexual harassment training annually for all interns and employees, including managerial and supervisory employees. The Act provides a more comprehensive, but still non-exhaustive, list of subjects that the annual trainings must cover.
The sexual harassment training requirement may be incorporated into a broader anti-discrimination training and must include, but not be limited to the following: (1) an explanation of sexual harassment as a form of unlawful discrimination under local law; (2) a statement that sexual harassment is a form of unlawful discrimination under federal and state law; (3) a description of sexual harassment and examples of what sexual harassment is; (4) an internal complaint process available to employees; (5) the complaint process available through New York City Commission on Human Rights (“NYCCHR”), the New York City Division of Human Rights, and the United States Equal Employment Opportunity Commission, including contact information; (6) a statement that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful; and (7) information about bystander intervention, including, but not limited to, any resources that explain how to engage in bystander intervention.
New employees must complete training within ninety days of employment, but employees can carry training over from one employer to another. Employers will be required to keep a record of all trainings, including a signed employee acknowledgment for three years. The law assigns the NYCCHR the task of creating a series of online interactive training modules for access by employers. The online training program will be made public at no cost to satisfy the training requirement. Employers may use these model training programs or create their own training programs, as long as those programs meet or exceed the requirements of the model program.
Penalties for violations of the law can be steep and increase based on the number of violations. Despite this, the law has a built-in mechanism that allows an employer to avoid a penalty for a first-time violation if the employer could prove, within sixty days of the issuance of the notice of violation, that it is in compliance with the law.
Introduction 663-A of the Act also extends the statute of limitations period for filing claims of sexual harassment with the NYCCHR under New York City Human Rights Law (“NYCHRL”) from one year to three years. Once signed, this change would take effect immediately.
Introduction 657-A will expand the NYCHRL coverage of sexual harassment claims. Under current law, the NYCHRL only applies to employers with four or more employees. Once in effect, the Act will eliminate that employee threshold with respect to gender-based harassment claims and apply the law’s prohibition of gender-based harassment to all employers.
Finally, Introduction 630-A of the Act requires the NYCCHR to create an online-accessible anti-sexual harassment rights poster, accompanied by an information sheet on sexual harassment. All NYC employers will be obligated to display the poster, both in English and in Spanish, in a conspicuous location where employees gather, and to distribute the information sheet to all new employees at the time of hire.
Although it will likely be several months before New York State or New York City publish their model training programs, policies, or posters, employers should proactively take steps to be in compliance with the new laws. Employers would be wise to start revising policies to include potential liability for harassment of non-employees in the employer’s workplace; reviewing and revising nondisclosure provisions; and reviewing arbitration agreements to see if they will comply with the new laws.