New York City and New York State Pass Comprehensive Anti-Harassment Legislation

The New York City Council recently passed the Stop Sexual Harassment in NYC Act (“NYC Act”), a series of bills that address sexual harassment prevention in the workplace. Mayor Bill de Blasio is expected to sign the legislation into law in the near future. The passage of the NYC Act coincides with the signing of the 2018-2019 New York State Budget (“the Bill”), which includes comprehensive and significant changes to State anti-harassment laws described as “necessary to combat sexual harassment in the workplace.”

STOP SEXUAL HARASSMENT IN NYC ACT

Mandatory Anti-Harassment Training

The NYC Act would require employers (with 15 or more employees including interns) to conduct annual anti-sexual harassment training beginning on April 1, 2019 for all employees, including supervisors and managers. The training is required for all employees who work more than 80 hours in a calendar year and for new employees within 90 days of hire. The training must cover a range of topics, including a statement that harassment is a form of discrimination under state and federal law; a description of sexual harassment (including examples of what constitutes harassment); internal complaint procedures for an employee to make a harassment complaint; information about the complaint process under local, state, and federal law (including agency contact information); prohibitions on retaliation; information about bystander intervention; and a manager/supervisor’s responsibility to prevent sexual harassment and retaliation. The training must be “interactive,” and include some type of participatory teaching and trainer/trainee interaction; however, live training is not required. Employers are also required to retain records of training for at least three years, including signed employee acknowledgments. The NYC Act also provides that an employer is not required to provide anti-sexual harassment training to an employee who received such training at a prior employer within the training cycle until the next cycle begins.

In addition, the NYC Act mandates that the New York City Commission on Human Rights (“Commission”) develop an online interactive training module covering the required training topics. Employers will have the option of using this program for training purposes provided that the employer apprises employees of any available internal complaint processes to address harassment, or employers may use their own training programs, provided such programs comply with the NYC Act’s requirements. The Commission is also required to update such modules as needed.

Required Notice and Postings

The NYC Act requires the Commission to develop an “anti-sexual harassment rights and requirements poster,” along with an “information sheet on sexual harassment.” Employers will be required to display the poster in a “conspicuous” place, such as an employee breakroom or common area, and distribute the information sheet at the time of an employee’s hire.

Expanded Protections and Limitations Period

The anti-discrimination provisions currently included in the New York City Human Rights Law (“City Human Rights Law”) apply only to employers with four or more employees. Under the new law, employees will be allowed to file gender-based harassment claims regardless of an employer’s size.

The Act also expands the statute of limitations for employees to file a gender-based harassment claim with the Commission, from one year to three years from the time of the alleged conduct. There is, however, no change to the limitations period for other types of discrimination claims covered by the City Human Rights Law.

NEW YORK STATE BUDGET

The Bill adds a new provision to the New York Labor Law to require the New York State Department of Labor (“NY DOL”), in consultation with the New York State Division of Human Rights (“State Division”) to develop and publish a model anti-harassment policy, which must include prohibitions on sexual harassment, information regarding federal and state sexual harassment laws and available remedies (and a statement that local laws may also apply), a standard complaint form and procedure for investigating complaints, information regarding employee rights and redress for claims, and prohibitions against retaliation. The policy must also include a statement that sexual harassment is a form of “employee misconduct” and that action will be taken against individuals engaging in such conduct and against supervisors who knowingly allow such misconduct to continue. Employers are required to adopt the model policy by October 9, 2018, or establish their own policy that meets or exceeds these requirements.

The Bill also requires the NY DOL, in consultation with the State Division, to develop and publish an interactive training program, which must include an explanation of sexual harassment, examples of prohibited conduct, information regarding federal and state harassment laws and available remedies, information regarding employee rights and redress for harassment claims, and address supervisory conduct and responsibilities. Employers are required to adopt the model training program, by October 9, 2018 (several months earlier than the training required under the NYC Act) or establish their own training programs that meet or exceed such requirements.

The Bill adds a new provision to the New York Civil Practice Law and Rules (“CPLR”), prohibiting mandatory arbitration of sexual harassment claims (effective as to agreements entered on or after July 11, 2018), with a carve-out for sexual harassment claims subject to collective bargaining agreements. The enforceability of this provision is expected to be challenged as preempted by the Federal Arbitration Act.

The Bill also adds new sections to the New York General Obligations Law and CPLR prohibiting non-disclosure agreements for sexual harassment claims (as of July 11, 2018), unless confidentiality is the “preference” of the employee and such “preference” is included in the settlement agreement. The employee must also be provided with 21 days to consider the confidentiality provision and, after signing an agreement containing such a provision must be given seven days to revoke the agreement.

In addition, the Bill adds a new section to the New York Executive Law expanding liability for sexual harassment to protect contractors, vendors, consultants (and other non-employees providing services under a contract) if the employing entity (or its agents or supervisors) “knew or should have known” that such an individual was subjected to sexual harassment and the employing entity failed to take immediate and effective remedial action.

Finally, the Bill requires state contractors to implement a written anti-harassment policy, provide annual training to all employees, and submit a certification confirming they have done so.

For questions regarding this blog, or sexual harassment issues generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

Elizabeth Cowit is Counsel in the Gibbons Employment & Labor Law Department.
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