In a strong response to the #MeToo movement, New York State and New York City recently enacted significant amendments to the state and city human rights laws to add detailed requirements for the adoption of a sexual harassment prevention program, including mandatory sexual harassment policies, posters, and training programs.
New York State Law
Sexual Harassment Prevention Policy
The amendments to New York State’s human rights law will require all employers, regardless of employee count, to implement a sexual harassment prevention policy that includes the following elements:
- Prohibition of sexual harassment consistent with guidance from the New York State Department of Labor and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
- Information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
- A standard complaint form;
- A procedure for the timely and confidential investigation of complaints and to ensure due process for all parties;
- Information for employees on remedies and available forums for adjudicating sexual harassment complaints;
- Clearly state that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in such conduct and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
- Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
The law tasks the New York Department of Labor with developing a model policy which may be adopted by employers for compliance purposes. Employers may also elect to adopt their own policy as long as it equals or exceeds the minimum standards provided by the model policy.
This provision of the law takes effect October 9, 2018.
Sexual Harassment Prevention Training Program
The state law also requires every employer, regardless of size, to adopt an interactive sexual harassment prevention training program and provide such training to all employees on an annual basis. The training program must include:
- An explanation of sexual harassment consistent with the guidance from the New York Department of Labor;
- Examples of conduct that would constitute unlawful sexual harassment;
- Information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
- Information concerning the employees’ rights of redress and all available forums for adjudicating complaints; and
- Information addressing conduct by supervisors and any additional responsibilities for such supervisors.
Similar to the prevention policy, the law tasks the New York Department of Labor with developing a model training program which may be adopted by employers for compliance purposes. Employers may also elect to adopt their own training program as long as it equals or exceeds the minimum standards provided by the model training.
This provision of the law takes effect October 9, 2018.
Arbitration and Confidential Settlement Agreements
The law also contains direct jabs at the confidential settlements of sexual harassment complaints that came to light as a result of the #MeToo movement. As a result, New York employers will no longer be permitted to enter into any settlement agreements with employees that prevent the disclosure of the underlying facts and circumstances of claims involving sexual harassment. Such provision may only be included in a settlement agreement where the employee or complainant requests it. If so requested, the complainant must be given a period of 21 days to consider whether to accept the confidentiality language and then must be given an additional seven days to revoke his or her acceptance.
Similarly, employers may no longer include contractual provisions that mandate arbitration for any allegations or claims of sexual harassment, exception where such prohibition is inconsistent with federal law. Additionally, any such provision in existing arbitration agreements will be considered null and void as of the effective date of this section of the law.
These provisions will take effect July 11, 2018.
Extension of Sexual Harassment Protection
Finally, the state law extends protections from sexual harassment to non-employees who are present in the workplace. Thus, employers may now be held liable for sexual harassment contractors, subcontractors, vendors, consultants, or any other person providing services in the workplace, if the employer, its agents, or supervisors knew or should have known that the nonemployee was subject to sexual harassment in the employer’s workplace and failed to take appropriate corrective action.
This provision took effect immediately upon passage of the law on April 12, 2018.
New York City Laws
Workplace Anti-Harassment Training
Similar to the state law, the new city law has its own requirement that employers adopt interactive workplace anti-harassment training for all employees who work more than 80 hours in a calendar year. This requirement applies to all private employers with 15 or more employees in New York City. The training must include the following elements:
- New hires must be trained within 90 days of their hire date, unless the employee received training within the same annual cycle from a prior employer;
- Training must be conducted on an annual basis for all employees;
- All employees must sign an acknowledgement of receiving the training and the employer must keep these acknowledgements for a minimum of 3 years;
- The training must be interactive, meaning that it meets one of the following requirements: trainer-trainee interaction; use of audio visuals; computer or online training program; or other participatory forms of training;
- An explanation of sexual harassment as a form of unlawful discrimination under the New York Human Rights Law;
- A statement that sexual harassment is also a form of unlawful discrimination under state and federal law;
- A description of what sexual harassment is, including examples.
- An internal complaint process available to employees through their employer to address sexual harassment claims.
- An explanation of the complaint process available through the City Commission, the New York State Division of Human Rights, and the U.S. Equal Employment Opportunity Commission, including contact information.
- A prohibition against retaliation as defined under the New York City Administrative Code section 8-107 and examples of protected activity under the law.
- Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention.
- The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employee may take to appropriately address sexual harassment complaints.
Similar to the state law, the City Commission will develop and provide a free online model training program that employers may utilize if they choose not to adopt their own compliant program.
This law will take effect April 1, 2019.
Required Handout and Poster
All New York City employers, regardless of employee count, will also be required to post an “anti-sexual harassment rights and responsibilities” poster in both English and Spanish in a workplace common area. The City Commission will develop and issue and approved poster that employer may use for compliance purposes.
In addition to the poster, employers will be required to provide all new hires with an information sheet that discusses anti-sexual harassment rights and responsibilities, or alternatively, may update their employee handbooks to ensure they meet the requirements of the law and issue the handbook to all new hires.
This law will take effect around August 28, 2018.
Extended Statute of Limitations and Application
The city law also extends the time employees have to file a claim of “gender-based harassment” under the New York City Human Rights Law to 3 years (previous 1 year). Additionally, the law extends application of the City Human Rights Law with respect to sexual harassment to all employers (previously it was limited to employers with 4 or more employees).
This law took effect immediately upon enactment.
New York State and City employers should begin preparations to comply with these significant changes in the law. Importantly, New York City employers will have to comply to both State and City law, thus, where differences between the laws exist, City employers have to determine how best to address the requirements under both laws. Employers should keep an eye out for model policies, trainings, posters, and notices on the New York State Department of Labor and the New York City Commission websites. As soon as those resources become available, employers should begin immediate implementation to ensure they are able to comply by the laws’ effective dates.