Sexual Harassment – New York Increases Protections to Employees and Non-Employees

Recently, both New York State and New York City made changes to their laws to deal with the pervasive issue of sexual harassment in the workplace.  A number of different laws are being enacted, the highlights of which are provided below.

New York State

  • Mandatory Arbitration of Sexual Harassment Claims Prohibited. Effective July 11, 2018, employers will be prohibited from requiring employees to submit sexual harassment claims to arbitration, even if the arbitration agreement was signed before the law takes effect.  This does not apply, however, to arbitration clauses contained in collective bargaining agreements.  NOTE: The United States Supreme Court has ruled that the Federal Arbitration Act preempts state law and so there is likely to be litigation to challenge the new law shortly after it takes effect.
  • Non-Disclosure/Confidentiality Provisions Prohibited. Effective July 11, 2018, non-disclosure and confidentiality provisions in settlement agreements addressing sexual harassment claims will be prohibited, unless the complaining party agrees to such a provision.  The new law will require employers to provide 21 days to the employee to consider the agreement and 7 days to revoke its acceptance after it is executed.
  • Non-Employees Covered. Effective immediately, coverage under the New York State Human Rights Law is extended to protect non-employees, such as contractors, freelancers, vendors, consultants or any other individuals who provide services under a contract. Employers will be liable for sexual harassment involving non-employees if the employer knew or should have known about the harassment and failed to take immediate and appropriate corrective action.
  • Mandatory and Model Sexual Harassment Training and Policies. Effective October 9, 2018, all New York employers will be required to provide annual sexual harassment training to all of their employees.  A training program and draft model policies will be developed by the New York State Division of Human Rights and New York State Department of Labor for employers to use.  Employers may continue to use their own policies as long as they meet or exceed the standards that are developed by the State.  Although not yet published, the trainings will:  (a) prohibit and provide examples of sexual harassment; (b) include references to federal and state laws concerning sexual harassment and a statement that there may be applicable local laws; (c) inform employees of the rights and remedies available to harassment victims, including all forums available for adjudicating sexual harassment complaints judicially and administratively; (d) include a standard complaint form and procedure for confidential investigation of complaints; (e) include a statement that sexual harassment is considered employee misconduct and that any employee engaging in sexual harassment, and any supervisory/managerial employee who knowingly allows such conduct, will be sanctioned; and (f) include a statement that retaliation against individuals who complain of sexual harassment or who testify or otherwise assist in any proceeding is unlawful.

New York City

New York City passed the Stop Sexual Harassment in New York City Act (which, as of the date of this publication, is awaiting the Mayor signature).  The highlights of this law are as follows:

  • Size of Employer Does Not Matter. The New York City Human Rights Law generally only applies to employers with four or more employees.  Once the new law is signed, it will immediately allow gender-based harassment claims to be pursued against any employer, regardless of the number of employees.
  • Statute of Limitations Expansion. Upon the signing of the law, the statute of limitations for filing claims with the New York City Commission on Human Rights (“NYCHRR”) will be expanded from one year to three years from the date of the harassing conduct.  This will put the City law in line with State law, which currently has a three-year statute of limitations for filing such claims.
  • Postings, Posters and Policies. Within 90 days of the law being signed, the NYCCHR will be required to post on its website a section specifically dealing with sexual harassment.  This will allow individuals to have access to the resources of the NYCCHR, including information about how to file an administrative complaint with the agency (as well as others), along with other information about sexual harassment being a form of unlawful gender discrimination.  Within 120 days of the law being signed, employers will be required to conspicuously display the sexual harassment rights and responsibilities poster created by the NYCCHR. It would also require employers to provide an information sheet on sexual harassment, also to be developed by the NYCCHR, to new employees at the time of hire.  As well, employers will be required to distribute an information sheet on sexual harassment to new hires, which will be created by the NYCCHR (and available on its website).
  • Annual Employee Training. Effective April 1, 2019, private employers with 15 or more employees will be required to annually conduct interactive anti-sexual harassment training for all employees.  The city law provides a similar (but longer) non-exhaustive list of subjects that annual trainings must cover and requires that trainings be participatory in nature, whether accessed through computer or with a live instructor.  The topics that must be included in the training will be: (a) an explanation of sexual harassment as a form of unlawful discrimination under local law; (b) a statement that sexual harassment is also a form of unlawful discrimination under state and federal law; (c) a description of what sexual harassment is, using examples; (d) any internal complaint process available to employees through their employer to address sexual harassment claims; (e) the complaint process available through the NYCCHR, the New York State Division of Human Rights and the Equal Employment Opportunity Commission; (f) the prohibition of retaliation and examples of it; (g) information on bystander intervention; and (h) 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.  The law tasks the NYCCHR with the obligation to create a series of online interactive training modules for employers to access and use. Employers will not need to train an employee until after 90 days of employment, nor will they need to retrain an employee who has received training at another employer within a particular time-frame.  To demonstrate compliance, employers will be required to maintain training records for at least three years, including signed employee acknowledgment forms.

The Law Offices of Yale Pollack, P.C., located on Long Island in Syosset (Nassau County), New York, can assist in reviewing policies, agreement and trainings to ensure compliance with the laws.  Contact us today at (516) 634-6340.