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May 14th, 2018
How to Comply with New York’s New Anti-Harassment Rules
On April 12, 2018, the New York State Legislature and Governor Andrew Cuomo agreed on new rules for public and private employers aimed at preventing sexual harassment. On April 11, 2018, the New York City Council also enacted a package of eleven bills (signed by Mayor DeBlasio on May 9th) collectively titled the Stop Sexual Harassment in NYC Act (the "Stop Harassment Act"). Five of these bills directly affect private employers in NYC. The State and City provisions phase in at various points over the next year (some are effective right now), and are aimed at combatting sexual harassment in the workplace. Described in more detail below, they enlarge the number of employers subject to liability for workplace sexual harassment, extend the statutes of limitations for harassment claims, increase employer training requirements, and place limits on the use of confidentiality and mandatory arbitration provisions with respect to sexual harassment claims. Here's a summary.
NEW PROTECTIONS IN NEW YORK STATE
- New York State amends the New York Executive Law to expand liability for sexual harassment to "non-employees" (contractors, subcontractors, vendors, consultants or other persons providing services pursuant to a contract) in the workplace. This provision goes into effect immediately.
- The State amends the New York Civil Practice Law and Rules ("CPLR") to prohibit the use of mandatory arbitration clauses to resolve sexual harassment claims "except where inconsistent with federal law" (improper clauses, if used, will be rendered "null and void"). It remains to be seen whether this provision will be enforceable, as such state laws have generally been found to be preempted by the Federal Arbitration Act. This provision goes into effect on July 11, 2018.
- The State further amends the CPLR to prohibit courts from approving confidential settlement agreements for sexual harassment claims, unless confidentiality "is the claimant's preference." Under such circumstances, the complainant must be provided with 21 days to consider this term or condition and be provided with a period of 7 days following execution of such an agreement to revoke it. This provision goes into effect on July 11, 2018.
- The State amends the New York Labor Law to require the New York Department of Labor ("NYSDOL") and the New York State Division of Human Rights ("NYSDHR") to develop a model sexual harassment prevention policy, and requires all New York employers to either adopt the model policy or develop their own policy that equals or exceeds the standards set by the model policy. Employers must prepare and distribute this policy by October 9, 2018.
- The State also requires the NYSDOL to consult with the NYSDHR to develop a model training program to prevent sexual harassment in the workplace. Every employer in New York will be required to utilize this model program, or one that "equals or exceeds the minimum standards" provided by the model training program, and to provide this training to employees on an annual basis. This provision will go into effect October 9, 2018.
NEW PROTECTIONS IN NEW YORK CITY UNDER THE STOP HARASSMENT ACT
- The Stop Harassment Act amends the Administrative Code of the City of New York to extend the statute of limitations for gender-based harassment claims under the New York City Human Rights Law from one year to three years.
- The Act further amends the New York City Human Rights Law ("NYCHRL") to expand the definition of employers who are subject to NYCHRL harassment claims from employers with four or more employees to all employers in NYC regardless of the number of employees. The NYCHRL already requires that employers count independent contractors "as persons in the employ of such employer." This section takes effect immediately.
- The Act requires that all private employers with 15 or more employees (including interns) conduct annual anti-sexual harassment trainings for employees and interns. New employees and interns expected to work more than 80 hours per calendar year must complete such training within 90 days of hire. Trainings are not required to be live, but must be "interactive" and comply with certain minimum standards for content. Employers will also be required to keep training records and signed employee acknowledgments for at least three years. This section also requires that the New York City Commission on Human Rights ("NYCCHR") create online training modules for such employer trainings. This section takes effect on April 1, 2019.
- The Act also requires the NYCCHR to create a new anti-sexual harassment rights and responsibilities poster and mandates that all employers display it in a conspicuous place and provide the information to new employees at the time of hire. This section takes effect October 7, 2018.
What Employers Should Do Next?
New York employers can take several steps to implement the new requirements of the New York State and New York City anti-harassment laws. Employers should review their existing policies and procedures with respect to sexual harassment for both employees and other workers, and also ensure that any policies are in compliance with minimum state and city requirements. Employers who do not conduct annual trainings should also start taking steps to put training programs in place. Finally, New York employers should review existing settlement and arbitration agreements in connection with sexual harassment complaints, and revise them in light of the new requirements.
We will continue to monitor the impact of the new laws for employers and provide additional information as it becomes available.
If you would like to schedule a training session, update your policies, or discuss any other aspects of the new rules, please contact Wendy Stryker at (212) 705-4838 or firstname.lastname@example.org, or any other member of the Frankfurt Kurnit Executive Compensation & Employment Group.