Apr 23, 2018 Employment Discrimination

New York State and New York City Both Expand Laws Prohibiting Workplace Sexual Harassment

UPDATE:  The New York City Council’s package of legislation referred to as the “Stop Sexual Harassment in NYC Act” was signed into law by Mayor de Blasio on May 9, 2018.

The NYC law’s requirement that employers post an anti-sexual harassment rights and responsibilities poster and provide an information sheet to all employees at the time of hire, both of which will be created by the New York City Commission on Human Rights (NYCCHR) will go into effect on September 6, 2018. The requirement that employers with 15 or more employees provide annual anti-sexual harassment training to all employees in New York City will go into effect on April 1, 2019. The NYCCHR will post model training on its website.

Similar posting and training provisions in the New York State law go into effect on October 9, 2018.

Both the New York State Legislature and the New York City Council recently passed broad expansions of the laws regarding sexual harassment in the workplace. Governor Cuomo signed the New York State bill into law on April 12, 2018. One day earlier, on April 11, 2018, the New York City Council enacted a package of legislation referred to as the “Stop Sexual Harassment in NYC Act” which Mayor de Blasio is expected to sign. These laws include:

  • a new annual sexual harassment training requirement for employees;
  • a prohibition under NYS law on non-disclosure provisions in settlement agreements, unless the Complainant requests confidentiality;
  • a prohibition on mandatory arbitration of sexual harassment claims in the NYS law;
  • a model sexual harassment policy to be drafted by the New York State Department of Labor and the New York State Division of Human Rights;
  • a requirement that all NYC employers post an anti-sexual harassment rights and responsibilities poster and provide an information sheet to all employees at the time of hire, both of which will be created by the New York City Commission on Human Rights (NYCCHR);
  • expansion of the protection from sexual harassment under the New York State Human Rights Law (NYSHRL) to non-employees, such as contractors, vendors, and consultants;
  • expansion of the statute of limitations period to file a gender-based harassment claim with the NYCCHR from one year to three years;
  • a provision allowing employees in NYC to file claims of gender-based harassment under the NYCHRL regardless of the size of the employer, in contrast with other provisions of the NYCHRL that are only applicable to employers with four or more employees; and
  • certification requirements for employers in NYS who are participating in competitive bidding for state government contracts.

Non-disclosure Agreements Prohibited

Under the NYS law, as of July 11, 2018 employers may not “include in any settlement, agreement or other resolution of any claim, the factual foundation for which involves sexual harassment, any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the Complainant’s preference.”

If an individual agrees to a confidentiality provision, he or she must be given a copy of the proposed non-disclosure agreement and will then have twenty-one days to decide whether to agree to it and an additional seven days after signing the agreement to revoke it, mirroring the notice and revocation provisions of the federal Older Workers Benefit Protection Act regarding the settlement of age discrimination claims.

No Mandatory Arbitration of Sexual Harassment Claims

New York State law will now prohibit the inclusion of a mandatory arbitration clause in any agreement to resolve an allegation or claim of sexual harassment. This prohibition will apply retroactively to existing contracts. The new law does not impact mandatory arbitration of claims not involving sexual harassment. The prohibition on arbitration of sexual harassment claims also does not apply to arbitration provisions in collective bargaining agreements.[1]

Model Employment Policy, Poster, and Information Sheet 

Both the state and city laws will require employers to provide additional written information to employees about sexual harassment.

Under the NYS law, the New York Department of Labor (NYSDOL) is directed to consult with the New York State Division of Human Rights (NYSDHR) to create a model sexual harassment prevention policy that will be available on the NYSDOL and NYSDHR websites. As of October 9, 2018, employers must either adopt the model policy or establish their own policy that must meet or exceed the standards of the model policy. A copy of the policy must be provided to all employees.

The policy must include:

  • examples of prohibited conduct;
  • information about federal and state statutory remedies for victims of sexual harassment and state that there may be applicable local laws;
  • a standard complaint form;
  • a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  • information regarding the available administrative and judicial forums for making complaints (such as the NYSDHR and the Equal Employment Opportunity Commission (EEOC));
  • a statement that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and supervisors or managers who knowingly allow such behavior to continue; and
  • a provision stating that retaliation against individuals who complain of sexual harassment or who testify or assist anyone making such a complaint is unlawful.

Similarly, the NYC provision will require employers to post an anti-sexual harassment rights and responsibilities poster and provide an information sheet to all employees at the time of hire, both of which will be created by the NYCCHR. The poster and the information sheet (which can be included in an employee handbook) will include contact information for the NYCCHR, the NYSDHR, and the EEOC, as well as guidance on how to file claims with each agency. Employers in NYC will be required to post English and Spanish versions. These requirements will go into effect 120 days after the bill is signed by Mayor de Blasio.

New Annual Training Requirements for All Employees

Both the NYS law and the NYC bill include new requirements for annual training of all employees. The NYC bill specifies that the annual training will be required for all employers with fifteen or more employees, but the NYS law training requirement applies to all employers, regardless of size.

The NYS law directs the New York DOL and the SDHR to create a model training program for the prevention of sexual harassment. Like the model policy, as of October 9, 2018 employers must either begin using the model training program or establish training that meets or exceeds the standards of the model training program. The annual training requirement under the NYC bill begins on April 1, 2019.

Under the NYC law, annual training must be provided to both part-time and full-time employees who work more than 80 hours in a calendar year in NYC. For new employees, the training must be provided within 90 days of hire, unless the employee received training at another employer during the prior year. The NYS law requires annual training for all employees and does not specify how soon new employees must receive training.

Both the NYS and NYC laws require the training to be “interactive.” While the NYS law does not define “interactive,” the NYC version explains that training must be participatory, but specifies that the training is not required to be live or facilitated by an in-person instructor.

Training under both laws must explain the legal definitions of sexual harassment and provide examples. Both versions require employers to inform employees about all available forums for filing complaints, both internal and external, such as the NYCCHR, the NYSDHR, and the EEOC. Other training requirements include addressing retaliation, the additional responsibilities supervisors and managers have to prevent and correct sexual harassment, as well as (under the NYC version), information regarding “bystander” intervention.

New York City employers will be required to obtain signed forms from employees acknowledging that the employees have been provided with training and employers must keep the signed forms for three (3) years.

Expanded Protection for Non-employees in the Workplace

Previously, the NYSHRL, Executive Law § 296 et seq., only allowed employees to file claims of workplace sexual harassment. Under the new law, effective immediately, the NYSHRL is amended by adding a § 296-d which makes it unlawful for an employer to permit sexual harassment of non-employees (such as contractors, subcontractors, vendors or consultants) in the employer’s workplace. Employers, as well as their agents and supervisors, can be held liable if they knew or should have known, that such non-employees were subjected to sexual harassment in the employer’s workplace and failed to take corrective action.

The NYS law states that in reviewing cases involving non-employees, “the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the harasser shall be considered.”

Expanded Coverage and Statute of Limitations In NYC

Currently, the NYCHRL applies to employers with four or more employees. Under the new bill, individuals would be able to file sexual harassment claims with the NYCCHR or in court regardless of the size of their employer.

In addition, effective immediately upon signing, the NYC bill will expand the statute of limitations period for individuals to file sexual harassment claims with the NYCCHR from one year to three years. Individuals currently have, and will continue to have, three years to file a claim in court.  

Government Contractor Requirements

The New York State Finance Law has been amended so that as of January 1, 2019, where competitive bidding is required, all bidders for contracts with the state, or with any state department or agency, must certify, under penalty of perjury, that they have implemented a policy and provided training consistent with the model policy and training program.

Where competitive bidding is not required, the NYS department, agency, or official will have the discretion to determine whether a certification is required.

Although the NYS law states that “a bid shall not be considered for award, nor shall any award be made” to a bidder who has not provided the required certification, the law also provides that a bidder who cannot provide the certification “shall so state and shall furnish with the bid a signed statement which sets forth in detail the reasons, therefore,” leaving open the possibility that a bid may be successful even if the bidder is not able to provide the certification.

In NYC, businesses contracting with the city will be required to include sexual harassment policies and procedures in their applications for city business.

Next Steps

Employers should review their policies prohibiting sexual harassment to determine if they meet the requirements outlined above, although further changes will likely be necessary once model policies are created. Employers should also begin planning to provide annual training for all employees. Employers should also review their employment contracts and employee handbooks to exclude sexual harassment claims from any mandatory arbitration provisions. Any model separation or settlement agreements should also be revised to meet the non-disclosure provisions described above.

If you have any questions regarding the provisions of the new laws or would like assistance in drafting or revising policies, training programs or separation or settlement agreements, please do not hesitate to contact one of our attorneys.

[1] The NYS law states that “where there is a conflict between any collective bargaining agreement and this section, such agreement shall be controlling.”