By Alexander Bau, Esq. and Danielle Comanducci, Esq.
In the wake of the Time’s Up and #MeToo movements, both New York State and New York City passed new laws implementing stronger protections against sexual harassment. New York employers now must update their policies and agreements, conduct mandatory sexual harassment training, and provide employees with additional information about sexual harassment. For all New York employers, taking affirmative steps to comply with these new laws should be a top priority. Below is a summary of these new requirements and the key steps employers must take.
A. Employers must update their sexual harassment policies
Starting October 9, 2018, all New York State employers must have updated written sexual harassment policies in place. These updated policies must contain the following key components:
• A statement prohibiting sexual harassment;
• Examples of prohibited conduct;
• Information concerning federal and state sexual harassment laws and a statement that there may be additional applicable laws;
• A standard complaint form;
• The procedure for the timely and confidential investigation of complaints;
• A statement informing employees of their rights of redress and available forums for adjudicating claims administratively and judicially;
• A statement that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory management who knowingly allow such behavior to continue; and
• A statement that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceedings is unlawful.
The policy must be provided to employees in writing. The New York State has released a draft model sexual harassment prevention guidance and sexual harassment prevention policy. Employers can adopt this policy or adopt an equivalent one of their own as long as it complies with the required disclosures. In addition to the model policy, New York State has also released a draft model complaint form that employers can share with their employees. The model sexual harassment prevention policy and model complaint form are currently in draft form. New York State is currently reviewing the comments received from the public and finalized versions of these documents are expected to be released in the near future.
B. Employers must conduct mandatory sexual harassment training
Both New York State and New York City passed laws mandating sexual harassment training.
Starting on October 9, 2018, all New York State employers must provide interactive sexual harassment prevention training to all New York State employees on an annual basis. New York State employers will have until October 8, 2019 to conduct that training (however, all state contractors must submit an affirmation that they have a sexual harassment policy and that they have trained all of their employees by January 1, 2019). Such training must include the following topics:
• An explanation of sexual harassment;
• Examples of conduct that would constitute unlawful sexual harassment;
• Information concerning the federal and state laws concerning sexual harassment and remedies available to victims; and
• Information concerning employees’ rights of redress and forums for adjudicating complaints.
There are additional training requirements for New York City employers. Starting on April 1, 2019, all New York City employers with 15 or more employees (including interns) must provide interactive sexual harassment prevention training annually to all employees, including supervisory and managerial employees, and within 90 days of an employee’s initial hire. New York City employers are required to keep records of all trainings, including signed acknowledgements, for a period of 3 years. The New York City training programs must also:
• Include training on bystander intervention;
• Provide an explanation of sexual harassment as a form of unlawful discrimination under federal, state and New York City law;
• Give details about the internal complaint process and state that the complaint process is available through the NYCCHR, the NYS Division of Human Rights and the Equal Employment Opportunity Commission (including providing contact information);
• Explain that retaliation is prohibited;
• Provide specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such management employees may take to appropriately address sexual harassment complaints.
Both New York State and New York City laws require that the training be “interactive.” While not defined under the New York State law, under the New York City law the term “interactive training” 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 commission.” However, such “interactive training” is not required to be live.
New York State has released a draft model sexual harassment prevention training and a set of minimum standards for sexual harassment prevention training. New York State is currently reviewing the comments received from the public and finalized versions of these materials are expected to be released in the near future. New York City will also develop a model training programs which employers may use or adopt their own.
C. New York City employers must display a new anti-sexual harassment poster and distribute a fact sheet to employees
Since September 6, 2018, all New York City employers must: (1) Display a new anti-sexual harassment poster created by the NYC Commission on Human Rights (“NYCCHR”) in a conspicuous location in their workplace (in English and Spanish); and (2) distribute to all new hires the fact sheet created by the NYCCHR to all new hires (or include it in their employee handbook). Both the poster and informational fact sheet are available on NYCCHR’s website.
D. Employers must revise their employment and severance/settlement agreements
Since July 11, 2018, with limited exceptions, employment contracts can no longer require that employees submit sexual harassment claims to mandatory binding arbitration. In addition, employers cannot include non-disclosure provisions in severance/settlement agreements that relate to sexual harassment claims unless the inclusion of such a provision is the employee’s preference (in such case, the employee must be given 21 days to decide whether they want to consent to the inclusion of such a provision and 7 days thereafter to change their mind and revoke such consent).
E. Employers can now be liable for the sexual harassment of certain non-employees
Under the New York State Human Rights Law employers may now be liable for the sexual harassment of non- employees (i.e. contractors, subcontractors, vendors, consultants, or any other person providing services in the workplace) if the employer, its agents, or supervisors knew or should have known that the nonemployee was subject to sexual harassment in the employer’s workplace, and failed to take appropriate corrective action.
F. New York City Employers can be liable for sexual harassment regardless of the size of the employer
New York City has expanded protection against sexual harassment to all employees and interns in New York City (regardless of the size of their employer) and has extended the statute of limitations for sexual harassment claims from 1 year to 3 years.
G. Employer takeaways
Employers should be proactive and review their existing sexual harassment prevention policies and implement a plan and schedule for the mandatory employee training. They should also review their agreements with employees and revise them as necessary to comply with the new laws. Navigating these new requirements can appear daunting and it is recommended that employers consult with an employment attorney in connection with implementing these changes.
For further information please contact Alexander Bau at SashaB@shiboleth.com and Danielle Comanducci at DanielleC@shiboleth.com.