By: Harris S. Freier
The New York City Commission on Human Rights (“the Commission”) has issued its mandatory poster and information sheet for distribution to employees pursuant to the recently enacted Stop Sexual Harassment in New York City Act. By September 6, 2018, all employers doing business in New York City must conspicuously post and distribute the notice to all employees. The poster, available on the Commission’s website, must be at least 8.5 by 14 inches in size, using at least 12-point font, and posted in both English and Spanish. The Commission, however, has only released the English version to date.
The Commission has also released a Fact Sheet setting forth employees’ rights regarding workplace sexual harassment, which employers must distribute to all employees at the time of hire. The Fact Sheet, also available on the Commission’s website, can be accessed by clicking here. The information sheet may either be distributed as a separate document or incorporated into the employer’s Employee Handbook no later than September 6, 2018.
The poster and Fact Sheet advise employees of the protections of the New York City Human Rights Law (“NYCHRL”), lists examples of sexual harassment and advises that retaliation against employees reporting sexual harassment is illegal. The poster also provides the Commission’s phone number for employees to report sexual harassment in the workplace and provides information on how to file a Complaint with the Commission and a Charge of Discrimination the U.S. Equal Employment Opportunity Commission.
As we have previously advised, New York State and New York City employers must comply with recent sweeping changes to the laws regarding sexual harassment, summarized as follows:
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 was 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 took 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, 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 took 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 Applies to All Employers – The NYCHRL prohibiting harassment and discrimination in the workplace now applies to all employers, regardless of size.
- Sexual Harassment Claims are Subject to a Three-Year Statute of Limitations – The statute of limitations to bring a claim under the NYCHRL has been extended from 1 year to 3 years for claims of gender-based harassment.
- NYC Employers Must Provide Annual Sexual Harassment Training – Effective April 1, 2019, New York 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. We are still awaiting the Commission’s sexual harassment training module.
Employer To-Do List
We will continue to monitor and update the new developments in both New York State and New York City. The following is a non-exhaustive list of action items that New York State and New York City employers are strongly encouraged to implement, 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.
- If you have employees in New York City, post the required sexual harassment poster and implement a system for distributing the required sexual harassment fact sheet to all employees upon hire or incorporate it into your Employee Handbook, no later than September 6, 2018.
For more information on what your company can do to ensure compliance with New York or New York City sexual harassment laws, please contact Harris S. Freier, Esq. of the firm’s Employment Litigation Practice Group, at firstname.lastname@example.org, or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Practice Group, at email@example.com, or 973-533-0777.