October 2, 2018.

The #MeToo movement has generated nationwide discussion on the subject of sexual harassment and resulted in increased workplace sexual harassment complaints.  In order to stop sexual harassment, New York State passed the 2019 New York State Budget, including the Stop Sexual Harassment in NYC Act, as well as extensive revisions to New York human rights laws. These changes increase employer liability for, and enhance employee protections against, workplace sexual harassment and gender discrimination.  The laws also expand the law to cover every for-profit and not-for-profit entity in the state of New York.  Accordingly, New York employers of all shapes and sizes should be aware of these new statutory requirements.

2019 New York State Law

The 2019 New York State Budget, signed into effect by Governor Andrew Cuomo, evokes many changes of which employers should be aware, including:

1. Mandatory Annual Sexual Harassment Prevention Policy and Interactive Training Program

Effective October 9, 2018, New York State employers must:

• Implement a new sexual harassment policy that meets or exceeds the guidelines provided by the forthcoming model sexual harassment prevention policy created by the New York State Department of Labor and New York State Division of Human Rights.
• Distribute their new or revamped policies to all employees and provide a standard complaint form for employee use.
• Implement an interactive sexual harassment prevention training program that features:
  • an explanation and specific examples of sexual harassment;
  • detailed information about federal, state, and local laws concerning sexual harassment and available remedies for victims;
  • the responsibilities of supervisors; and
  • a description of employee rights and all internal and external forums for bringing complaints.
• Render the training in the language spoken by their employees.
• Conduct the above-described sexual harassment trainings for all employees annually.

Per the finalized guidance on the new legislation released by Governor Cuomo, the deadline for employees to receive sexual harassment prevention training is October 1, 2019.  This gives employers a full year to implement compliant training programs.

2. Prohibition of Mandatory Arbitration of Sexual Harassment Claims

Effective July 11, 2018, New York Civil Practice Law and Rules bans mandatory binding arbitration provisions in employment contracts, except where inconsistent with federal law or included as part of a collective bargaining agreement.  Although this provision could be preempted by the Federal Arbitration Act, prior to a Supreme Court ruling (or denial of certiorari) on the subject, employers should operate under the assumption that it is constitutionally sound.

3. Extension of Employer Liability for Sexual harassment to Non-Employees

Effective April 12, 2018, employers may be held liable for:

• sexual harassment claims brought by non-employees such as independent contractors, subcontractors and other employees working under service contracts.
• sexual harassment experienced by non-employees if the employer had knowledge or should have known about the incident(s) and did not take prompt and appropriate action to resolve the issue.

4. Prohibition of Non-Disclosure Agreements

Effective July 11, 2018, New York State Law will prohibit non-disclosure provisions in sexual harassment settlement agreements unless the complainant consents.  In order to obtain consent, the employer must ensure:

• the complainant prefers a non-disclosure provision;
• the complainant is given 21 days to consider the non-disclosure provision; and
• the complainant is given seven days to revoke acceptance of the non-disclosure provision.

Stop Sexual Harassment in NYC Act (New York City Law)

As with the New York State Laws, the Stop Sexual Harassment in NYC Act requires the attention of all NYC employers.  The following is a list of provisions, many of which became effective upon Mayor De Blasio’s signing on May 9, 2018, of which employers should be aware:

1. Extended Statute of Limitations for NYC Sexual Harassment Claims

As of May 9, 2018, the statute of limitations for sexual harassment claims under the New York City Human Rights Law is extended from one year to three years.

2. Law Applies to All Employers

As of May 9, 2018, current city laws prohibiting gender-based harassment apply equally to all employers, rather than merely those with 4 or more employees.

3. Requirement to Distribute written policies, forms, information sheets, and hang posters outlining the sexual harassment complaint process

As of September 9, 2018, New York City employers will be required to conspicuously display a poster created by the New York City Human Rights Commission that outlines the rights of employees and responsibilities of employers with respect to sexual harassment policies and protocol.  Employers must also distribute an information sheet containing the same information to current employees and new employees upon hire.  The posters and information sheets must be posted and distributed in English and Spanish, and if employees speak a different language, these materials must be posted and distributed in that language as well.

4. Mandatory Interactive Anti-Sexual Harassment Training

As of April 1, 2019, employers with 15 or more employees must conduct annual, interactive anti-sexual harassment training with all employees and interns.  To comply with the law, employees of the relevant employers must be trained according to the stated guidelines by that date.

According to the City Law, the “interactive” requirement means “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory forms of training as determined by the [New York City Human Rights] Commission.”

Though it is similar to the New York State Law, the City Law provides a longer list of mandates for the trainings and does not require training of employees until after 90 days of employment or retraining of employees who participated in the requisite training through another employer. Additionally, employers will be required to maintain training records dating back three years to demonstrate compliance with the law.

Conclusion

Given the extensive changes in New York State and City Law contained in this legislation to stop sexual harassment, New York employers should anticipate an upswing in sexual harassment claims.  Accordingly, employers should immediately embrace and implement policy and training reforms to their current sexual harassment programs to protect their employees and insulate themselves from potential liability.

For an even more detailed discussion of these changes, read Tannenbaum Helpern Syracuse & Hirschtritt LLP’s comprehensive article here ^[1].

Learn about how Castaybert PLLC can assist you with an employment law matter here ^[2].