New York Takes Aim at Sexual Harassment in the Workplace

The Time’s Up and #MeToo movements continue to affect change in workplaces across America. Most recently, comprehensive anti-sexual harassment measures have been passed on both the state and local levels in New York.

The New York State Law

The New York State Budget Bill for Fiscal Year 2018, which Governor Andrew Cuomo signed on April 12, 2018, takes aim at sexual harassment with a host of new laws designed to make New York workplaces more hospitable and professional. Under the Budget Bill, contractors, vendors and other non-employees will immediately enjoy protection against sexual harassment as the law imposes liability on employers for sexual harassment claims asserted by such individuals if the employer knew or should have known about the alleged harassment and failed to take immediate and appropriate corrective action. This provision does not alter existing law because Title VII of the Civil Rights Act has already been extended to protect individuals outside of the traditional employment relationship.

Other provisions of the new law are departures from existing law. First, effective July 11, 2018, the Bill prohibits employers from requiring that employees arbitrate sexual harassment claims. Further, employers may not include a nondisclosure/confidentiality provision in settlement or separation agreements to the extent it restricts the complainant’s right to disclose facts giving rise to a sexual harassment claim, unless the complainant consents to such a provision, has at least 21 days to consider whether to sign the agreement, and an additional seven days after signing it to decide whether to revoke the agreement.

Also under the Bill:

• All employers will be required to distribute anti-sexual harassment policies and conduct annual interactive training for all employees, including supervisors and managers. Such policies and training must include required topics and meet or exceed the minimum standards established by the New York Department of Labor (NYDOL) which, as of October 9, 2018, is tasked with creating model policies and training programs for distribution to employers.
• Effective January 1, 2019, companies bidding on state contracts must certify under penalty of perjury that they have implemented written anti-sexual harassment policies and provide the mandatory anti-sexual harassment training on an annual basis.

The New York City Legislation

The New York City Council passed a collection of bills referred to as the Stop Sexual Harassment in NYC Act on April 11, 2018, which is awaiting signature by Mayor Bill de Blasio. If signed by the mayor, the various bills will take effect on a graduated basis. Highlights of these bills include the following:

• Effective April 1, 2019, the New York City Commission on Human Rights (NYCCHR) must post resources about sexual harassment on its website and employers with 15 or more employees must conduct annual interactive anti-sexual harassment training for all employees, including supervisors and managers. The training must include mandatory topics, including sexual harassment definition and examples; bystander intervention education; and complaint procedures under the employer’s internal policies and applicable federal, state, and local law.
• Within 120 days of the Mayor signing the bill, employers must conspicuously display a poster of anti-sexual harassment rights and responsibilities and provide employees with a sexual harassment information sheet distributed by the NYCCHR.
• Once the bills are enacted, employees will have three years instead of the current one year to bring a gender-based harassment claim under the New York City Human Rights Law.
• City contractors must include in the report required for certain contracts under the City Charter their practices, policies and procedures for preventing and addressing sexual harassment.

Practice Pointers

Because many of the new requirements under the State law go into effect in the coming months, employers should immediately takes steps to ensure full compliance with the new law, including reviewing waiver/release and arbitration agreements as well as policies and procedures related to sexual harassment prevention and, if necessary, updating them. Similarly, because some of the requirements under the NYC Act also go into effect fairly quickly once the Mayor signs the bills, employers operating in New York City should begin their compliance preparation as quickly as possible. Additionally, although there is significant overlap between the State and City anti-sexual harassment laws, each contains unique requirements so employers in New York City must be careful to comply with both the State law and, if enacted, the City laws.