In the wake of the #MeToo and #TimesUp movements, the New York Legislature and the New York City Counsel have adopted groundbreaking legislation imposing significant employer obligations and expanding employee protections for unlawful sexual harassment in the workplace.
New York State Legislation: As part of its 2018-2019 state budget bill, on the New York Assembly included numerous provisions aimed at eradicating workplace sexual harassment. In his press release, Gov. Cuomo (who is expected to sign the bill) described the action as “the strongest and most comprehensive anti-sexual harassment protections in the nation,” which includes the following key provisions:
- Mandatory Training and Anti-Harassment Policy: regardless of size, all New York employers must provide annual “interactive” sexual harassment training to all employees that covers the following:
- An explanation of sexual harassment consistent with state requirements;
- Examples of the kinds of conduct that may constitute unlawful sexual harassment; and
- Information concerning state and federal anti-harassment laws, the remedies for violations, and all of the available judicial and administrative forums for adjudicating complaints of sexual harassment
Employers must also develop and distribute an anti-harassment policy to all employees that meets all state requirements, as well as a standard complaint form that employees may (not must) use to lodge harassment complaints. The State Division on Civil Rights is charged with developing model a training program and anti-harassment policies that employers may opt to use; alternatively, employers may adopt their own training programs and policies, so long as they meet the minimum state requirements.
These provisions take effect 180 days after the bill is enacted.
- Mandatory Arbitration and Non-Disclosure Agreements Prohibited: mandatory arbitration of employment-related claims and non-disclosure/confidentiality of settlements of employment claims are commonplace. However, under the terms of the new state budget requirements, mandatory arbitration of sexual harassment claims is prohibited. It remains to be seen whether this provision will be challenged as pre-empted by the Federal Arbitration Act that favors arbitration as the forum for resolving employment disputes.
Likewise, the bill prohibit the inclusion of a non-disclosure provision in any settlement of a sexual harassment claim unless it is the expressed “preference” of the employee, as evidenced by a written affirmation by the employee following the expiration of a mandatory 21-day waiting period to consider the provision. Thereafter, the employee will have an additional seven (7) days to revoke the affirmation of the non-disclosure provision.
These provisions take effect 90 days after the bill is enacted.
- Protections Extended to Independent Contractors and other Non-Employees: The current State Human Rights Law will be amended to clarify that employers may be liable for workplace sexual harassment of independent contractors, subcontractors, consultants and other non-employees if the employers knows of the harassing conduct and fails to take appropriate corrective action. This provision will take immediate effect upon signing.
The Stop Sexual Harassment in NYC Act: Like the state budget bill, the New York City Council passed a package of legislation aimed at addressing workplace harassment that overlaps in many respects the requirements of the state legislation. The principal provisions are discussed below.
- Mandatory Sexual Harassment Training: Starting in September, 2019, New York employers with 15 or more employees must provide mandatory, interactive anti-harassment training to all employees within 90 days of hire, and specifies that training must include the following elements:
- An explanation that sexual harassment is a form of unlawful discrimination under state federal and local law;
- An explanation of what sexual harassment is, accompanied by practical examples;
- A description of the company’s complaint procedures for employees who wish to report workplace harassment;
- A description of the federal, state and local law complaint procedures, along with contact information to these agencies;
- A statement that retaliation is prohibited, and providing examples of retaliatory conduct;
- A statement addressing the importance of bystander intervention.
- Additional training of supervisors and management personnel addressing their responsibility to prevent workplace harassment and the complaint procedures available to employees.
Employers are required to keep a record of all training, including a signed employee acknowledgement, for three years, and face civil penalties for failing to do so.
• Expanded Statute of Limitations: The legislation expands the statute of limitations for filing a claim of sexual harassment under the New York City Human Rights Law from one year to three years form the date of the occurrence.
• Notice and Posting Requirements: New York City employers must post an anti-sexual harassment rights and responsibilities poster in English and Spanish in a common work area. In addition, employers must provide an information sheet on sexual harassment to employees on the date of hire. The City will be issuing the poster and information sheet which will be available for download by employers. Civil penalties can be assessed for failing to meet these requirements.
The Employment Law Team at Lindabury routinely provides cost-effective sexual harassment training that covers all federal and state employment laws governing workplace harassment and discrimination. Employees are educated about the laws prohibiting workplace harassment and retaliation; trained to recognize actions which may constitute harassment and retaliation; and provided guidance as to the necessary steps to be taken should they be victimized or witness these prohibited behaviors in the workplace.
The responsibility of management personnel in preventing, documenting and investigating harassment and retaliation claims in the workplace, as well as the potential for individual liability for those managers who engage in these activities, are also covered in the training.
Contact a member of Lindabury’s Employment Law team today to schedule training for your workforce.