May 10, 2018
By Deena R. Merlen and Allison M. Grein
As the #MeToo movement sweeps the nation, a number of new laws in New York State and New York City have recently been enacted to provide greater protection against workplace sexual harassment.
The “Stop Sexual Harassment in NYC Act” was signed into law by Mayor de Blasio yesterday, May 9, 2018, and the New York State Budget Bill for the 2019 Fiscal Year, which includes legislation aimed at addressing and preventing sexual harassment in the workplace, was signed into law by Governor Cuomo on April 12, 2018.
In this new legal landscape, among other things, both New York State and New York City will soon require employers to administer annual sexual harassment training and distribute sexual harassment policies to their employees. Businesses will need to understand these and other new requirements in order to comply with the new laws.
Key provisions of the new laws are explained briefly below.
Requirements under the New York City Law:
- Mandatory Sexual Harassment Policies and Training: Effective April 1, 2019, employers with 15 or more employees are required to conduct annual anti-sexual harassment training for all employees, including supervisory and managerial employees. The training must be conducted on an annual basis for incumbent employees, and new employees who work 80 or more hours per year on a full or part-time basis in New York City must receive the training after 90 days of initial hire. Employers must also obtain from each employee a signed acknowledgment that the employee attended the training. The New York City Commission on Human Rights (“NYCCHR”) will develop publicly available online sexual harassment training modules for employers’ use, which will satisfy the training requirements of the law, so long as the employer supplements the module with information about the employer’s own internal complaint process to address sexual harassment claims.
- Gender-Based Harassment Claims Apply to All NYC Employers: Effective immediately, the New York City Human Rights Law (“NYCHRL”) is amended to permit claims of gender-based harassment by all employees, regardless of the size of the employer (it previously applied only to employers with four or more employees).
- Longer Statute of Limitations for NYC Sexual Harassment Claims: Effective immediately, the statute of limitations (“SOL”) for filing gender-based harassment claims with the NYCCHR under the NYCHRL is extended from one (1) to three (3) years, which makes the SOL for administrative charges the same as the SOL for filing claims in court.
- Displaying a City-Created Anti-Sexual Harassment Rights Poster: Effective September 6, 2018 (120 days after Mayor de Blasio signed the Act into law), employers must conspicuously display an anti-sexual harassment rights and responsibilities poster and distribute an information sheet on sexual harassment to new hires, both of which will be designed by the NYCCHR.
Requirements under the New York State Law:
- Mandatory Sexual Harassment Policies and Training: Effective October 9, 2018, employers are required to distribute written anti-harassment policies in the workplace and provide annual anti-harassment training for all employees, both based on models to be developed and published by the New York State Department of Labor (“NYDOL”) and the Division of Human Rights (“DHR”). The content of both the policy and the training program will be available on the NYDOL’s and DHR’s websites at some point before the laws become effective in October.
- Extension of Employer Liability for Sexual Harassment against “Non-Employees”: Effective immediately, the state’s new law imposes liability on employers for sexual harassment claims asserted by “non-employees” who provide services under a contract in the employer’s workplace (e.g., contractors, vendors, consultants, etc.). Although non-employees have traditionally not been covered under federal and state anti-discrimination employment laws, the state’s law now imposes liability against employers who “knew or should have known” about the sexual harassment of a non-employee and failed to take “immediate and appropriate corrective action.”
- Anti-Sexual Harassment Measures for State Contractors and Public Employers: Effective January 1, 2019, in connection with state contracts, bids will be required to contain language affirming that the bidding entity provides annual sexual harassment training to all of its employees and that it has implemented a written policy addressing sexual harassment in the workplace. Bids that do not contain such language shall not be considered, unless the bidder can provide a signed statement setting forth the reasons why it cannot meet the requirements.
- Prohibition of Nondisclosure Provisions for Sexual Harassment Claims: Effective July 11, 2018, employers are prohibited from including non-disclosure provisions in settlement agreements that prevent complainants from disclosing or discussing the facts underlying sexual harassment claims unless the condition of non-disclosure is the preference of the complainant. If the complainant wishes to include a non-disclosure provision, employers must provide such individuals with a 21-day period to consider whether to accept confidentiality language covering their sexual harassment claims, along with a 7-day period after signing a settlement agreement to revoke it. Note: This law does not bar provisions that require that the settling individual maintain the confidentiality of the terms of the agreement.
- Prohibition on Mandatory Arbitration Provisions for Sexual Harassment Claims: Effective July 11, 2018, except where inconsistent with federal law, employers are prohibited from instituting mandatory arbitration agreements for claims of workplace sexual harassment.
This announcement is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. If you need assistance with specific matters, our attorneys would be pleased to provide additional details or advice about specific situations. RPJ partner Deena R. Merlen focuses her practice on employment and labor law, intellectual property, media and general business/corporate law and RPJ Associate Allison“Ally” M. Grein regularly counsels clients on intellectual property, entertainment and employment law matters.