By: Harris S. Freier
Governor Andrew Cuomo recently signed several new laws imposing requirements on employers in New York State regarding sexual harassment. New York City employers will be subject to additional requirements, as Mayor Bill de Blasio just signed a package of bills, collectively called the “Stop Sexual Harassment in New York City Act.”. New York State and City employers should prepare for these changes and their varying effective dates summarized below.
New York State
- Employers Cannot Mandate Arbitration of Sexual Harassment Claims – Employers can no longer mandate that employees arbitrate sexual harassment claims unless that prohibition is inconsistent with (a) federal law or (b) a collective bargaining agreement. This provision is sure to be challenged based on preemption under the Federal Arbitration Act, however, unless or until a court rules otherwise, the law will be effective as of July 11, 2018.
- Most Nondisclosure Agreements are Banned from Sexual Harassment Settlements Unless Sufficient Consent and Notice – Employers who settle sexual harassment claims can no longer include provisions in their settlement agreements preventing the disclosure of facts underlying the claims, unless the complaining party consents to it. He/she must be given 21 days to consider the nondisclosure language and 7 days thereafter to revoke it. He/she cannot waive this right. This law takes effect on July 11, 2018.
- Employers Must Adopt a Policy and Provide Annual Training on Sexual Harassment – The state will establish a model sexual harassment policy and training program that will address specific topics, including information related to what laws workplace sexual harassment violates, remedies available to victims, complaint and investigation procedures, and the additional obligations imposed on supervisory employees to address sexual harassment. Effective October 9, 2018, employers will be required to adopt a policy that meets or exceeds the model policy’s standards, distribute that policy in writing to all of its employees, and implement an annual training program that meets or exceeds the model training program’s standards. Effective January 1, 2019, most companies bidding for a state contract will be required to accompany their bids with a certification stating that they have a written policy and training program that meets or exceeds the models.
- Employers Are Now Liable to Non-Employees for Sexual Harassment – Employers will be held liable for sexual harassment committed against contractors, subcontractors, vendors, and others providing services under a contract, where it can be shown that the employer (a) knew or should have known that such non-employee was being harassed but did nothing about it, and (b) has sufficient control and “legal responsibility” with respect to the conduct of the harasser. This law takes effect immediately.
- Government Employees Must Refund any Taxpayer-Funded Payouts for Sexual Harassment Awards – Effective immediately, employees of the state, political subdivisions or other public entities (including elected officials), who have been found personally liable for sexual harassment in the workplace, must refund to the state/other public entity any payments it made to the plaintiff on that employee’s behalf, within 90 days.
New York City
- NYC’s Anti-Harassment Statute Will Apply to All Employers – The NYC Human Rights Law (“NYCHRL”), which governs harassment in the workplace, previously applied to employers with 4 or more employees. Effective immediately, the NYCHRL applies to all employers, regardless of size, with respect to liability for sexual harassment.
- Sexual Harassment Claims Will be Subject to a Three-Year Statute of Limitations – In its prior form, the NYCHRL imposed a one-year statute of limitations on claims of discrimination and harassment. Effective immediately, that limitations period is extended to three years for claims of gender-based harassment.
- NYC Employers Must Provide Annual Sexual Harassment Training – The City will establish a model sexual harassment training program designed to explain what sexual harassment is and what laws it violates, and inform employees about the complaint processes and legal remedies available to them, that retaliation is prohibited, and the heightened duties imposed on supervisory employees to address sexual harassment. Effective April 1, 2019, private City employers with 15 or more employees will be required to provide all employees annual sexual harassment training that meets or exceeds the model program’s standards. New employees must receive the training within 90 days of hire. The program must be interactive, but it need not be live. Employers will be required to maintain records of trainings, including acknowledgement forms.
- NYC Employers Must Hang a Poster & Distribute a Hand-Out Regarding Sexual Harassment – The City will create a poster and hand-out setting forth employees’ rights regarding workplace sexual harassment. Effective September 6, 2018, all employers will be required to mount the poster in a conspicuous place and distribute the handout to all employees. The poster must be at least 8.5 by 14 inches in size, using at least 12-point font, and posted in both English and Spanish.
Employer To-Do List
The following is a non-exhaustive list of some action items that New York State and City employers are strongly encouraged to follow, in consultation with legal counsel:
- Review and revise your existing policies, practices, procedures, and training programs, as well as employment contracts, severance agreements, and other contracts to ensure compliance with these new state and city laws.
- Even if your existing harassment policies comply with the new laws, best practice suggests that you redistribute them.
- Now that contractors and other non-employees are protected from sexual harassment, you should consider providing training to them if you have not done so already.
- Do not blindly adopt the state and/or city’s model policies or training programs. These are designed to provide minimum thresholds that you should adjust and build upon based upon the needs of your company.
For more information on what your company can do to ensure compliance with the many new sexual harassment laws imposed on New York State and New York City employers, please contact Harris S. Freier, Esq., Partner in the firm’s Employment Litigation Practice Group, at firstname.lastname@example.org, or Dina M. Mastellone, Esq., Partner and Chair of the firm’s Human Resources Practice Group, at email@example.com, or 973-533-0777.