NY Enacts New Sexual Harassment Prevention Laws

Within less than a month, both New York State and New York City enacted new legislation aimed at preventing sexual harassment in the workplace. On April 12, 2018, Governor Andrew Cuomo signed into law anti-sexual harassment legislation as part of New York’s 2019 Budget Bill (the “Budget Bill”). Shortly thereafter, on May 9, 2018, New York City Mayor Bill de Blasio signed a series of bills, collectively referred to as the Stop Sexual Harassment in NYC Act (the “NYC Act”). These new laws are critically important because they include requirements that will affect virtually every employer in New York and, specifically, New York City. Here’s what you need to know:

Annual Interactive Sexual Harassment Training

The Budget Bill and the NYC Act both mandate that employers conduct annual[1] interactive[2] sexual harassment training beginning October 7, 2018 and April 1, 2019, respectively.  Although the new training required by the NYC Act is limited to employers with 15 or more employees, the Budget Bill requires that all employers conduct the new training.  The following chart outlines and compares the requirements of the Budget Bill and the NYC Act:

Training Requirements
	The NYC Act	The Budget Bill
1	A description of sexual harassment using examples.	An explanation of sexual harassment and examples thereof.
2	An explanation that sexual harassment is a form of unlawful discrimination under the New York City Human Rights Law (“NYCHRL”), as well as state and federal law.	Information regarding the federal and state laws concerning sexual harassment and the remedies available to victims of sexual harassment.
3	Any internal complaint process available to employees through their employer to address sexual harassment claims, and the complaint process available through the commission, the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission (including contact information).	Information concerning employees’ rights of redress and all available forums for adjudicating complaints.
4	The prohibition of retaliation, pursuant to subdivision 7 of section 8-107, and examples thereof.	N/A.
5	Information concerning bystander intervention, including, but not limited to, any resources that explain how to engage in bystander intervention.	N/A.
6	The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.	Information concerning conduct and responsibilities of supervisors.

To the extent that the above requirements do not overlap, New York City employers must ensure that they are complying with both laws. In addition, the NYC Act also requires that employers maintain training acknowledgment forms signed by employees for at least three (3) years. 

To assist employers, the New York State Department of Labor (the “DOL”) and the New York City Commission (the “City Commission”) have each been charged with developing interactive training programs to satisfy the requirements imposed by the new legislation. Employers may either adopt the model training programs or implement their own training programs so long as they equal or exceed the minimum requirements.

Distribution of Sexual Harassment Policies / Information

To varying extents, both the Budget Bill and the NYC Act require employers to distribute written sexual harassment policies/information to their employees.  Beginning October 9, 2018, the Budget Bill will require employers to establish a sexual harassment policy and distribute the written policy to all of their employees. At minimum, the sexual harassment policy must: 

1. Prohibit sexual harassment consistent with guidance from the DOL and the Division of Human Rights, and provide examples of prohibited conduct;
2. Include information regarding federal and state law concerning sexual harassment and remedies available to victims of sexual harassment;
3. Include a statement that there may be applicable local laws on sexual harassment;
4. Include a standard complaint form;
5. Include a procedure for the timely and confidential investigation of complaints;
6. Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
7. State that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow sexual harassment to continue; and
8. State that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding is unlawful.

Similar to the training programs discussed above, the DOL has also been charged with creating and publishing a model sexual harassment prevention policy, which employers may adopt.  If, however, employers choose not to adopt the model policy, they must establish their own policy meeting the aforementioned requirements.

Likewise, the NYC Act also requires that employers display and distribute anti-sexual harassment information to employees.  Beginning September 6, 2018, all New York City employers will be required to:  (1) conspicuously display an anti-sexual harassment rights and responsibilities poster in employee break rooms or other common areas; and (2) distribute a sexual harassment information sheet to new hires. The posters and information sheets will be designed and promulgated by the City Commission and must be provided to employees in both English and Spanish.  

Expansion of Sexual Harassment Claims 

The NYC Act expands the scope of exposure for sexual harassment claims by amending the NYCHRL to permit sexual harassment claims by all employees regardless of the size of the employer and extending the statute of limitations for filing sexual harassment complaints with the City Commission from one year to three years. Prior to this legislation, the anti-discrimination provisions of the NYCHRL (which encompassed sexual harassment claims) only applied to employers with four or more employees.

Prohibition of Non-Disclosure Provisions

Pursuant to the Budget Bill, beginning July 11, 2018, employers are prohibited from including a confidentiality or non-disclosure provision in any settlement, agreement or other resolution of a sexual harassment claim unless the condition of confidentiality is the complainant’s preference. Further, the complainant must be given twenty-one (21) days to consider such a non-disclosure provision and seven (7) days to revoke acceptance following its execution.  

Prohibition of Mandatory Arbitration for Sexual Harassment Claims

Beginning July 11, 2018, the Budget Bill will prohibit any provision in a contract requiring mandatory arbitration to resolve sexual harassment claims, “except where inconsistent with federal law[.]” The bill also declares such provisions in existing contracts to be null and void. It has been widely anticipated that this sweeping prohibition will be challenged in the courts as preempted by the Federal Arbitration Act. We will keep you apprised of any future litigation involving this issue.

Conclusion

Employers must be aware of these changes in the law and should begin preparing to implement and comply with the new training and notice requirements. Please do not hesitate to contact us with any follow-up questions or concerns.