The New York State legislature has passed sweeping legislation aimed at combating sexual harassment in the workplace. This zero-tolerance sexual harassment prevention bill becomes effective on October 9, 2018, and requires all New York State (“NYS”) employers to take action immediately. In addition to prohibiting mandatory arbitration for sexual harassment claims and limiting the availability of confidentiality agreements in sexual harassment settlement agreements, all NYS employers must adopt a sexual harassment policy and implement sexual harassment prevention training programs. NYS published a draft sexual harassment policy, complaint form, and model training guide available here. These forms are currently in the draft stage with the final versions expected to be released in the near future. Jaspan Schlesinger will release an update once these model documents are finalized.
New York City has also enacted its own local legislation addressing sexual harassment. Like the NYS law, the Stop Sexual Harassment in NYC Act (the “SSHNA”) also imposes a requirement that employers provide sexual harassment training. In some ways, it also goes farther than the NYS law, requiring employers to post sexual harassment disclosures in the workplace and on its website, making gender discrimination laws applicable to a broader group of employers, and extending the statute of limitations within which employees can make administrative charges of gender-based harassment.
THE NEW YORK STATE LAW
Sexual Harassment Policy
By October 9, 2018, pursuant to Labor Law section 201-G, all NYS employers must adopt a written sexual harassment policy, inclusive of a complaint form, compliant with NYS standards. An employer may adopt the model policy set forth by the New York State Department of Labor (“DOL”) in consultation with New York State Division of Human Rights (“NYSDHR”), or create its own policy that equals or exceeds the standards set forth in this model policy.
At a minimum, each employer’s sexual harassment policy must:
include a comprehensive definition of prohibited sexual harassment, including examples of unlawful conduct;
protect not only the employer’s employees but also job applicants, contractors, and non-employees conducting business with the employer, such as consultants, servicers, and vendors;
set forth the applicable federal and statute statutes concerning sexual harassment and the available remedies, and disclose that local laws may also apply;
include a complaint form for employees to report harassment;
include detailed procedures for conducting a thorough and confidential investigation of complaints or suspected sexual harassment, with due process for all parties;
inform employees of their rights and the judicial and administrative forums in which they can bring harassment complaints;
contain a clear statement that sexual harassment is considered employee misconduct and that sanctions will be enforced against individuals who engage in it and against supervisors and managers who knowingly allow harassment to continue;
state that retaliation against individuals who complaint of sexual harassment or testify or assist in any proceeding under the law is unlawful;
This policy must be in writing and, along with a complaint form, provided to all employees. Although not mandatory, Jaspan Schlesinger recommends that each employer obtain a signed acknowledgment that its employee was provided the employer’s sexual harassment policy in writing.
Sexual Harassment Prevention Training
All employers must provide their NYS employees (full-time, part-time and temporary) with sexual harassment prevention training on a yearly basis with the first training occurring on or before January 1, 2019. The training, at a minimum, must:
be interactive, which requires some level of participation by the employees being trained;
include an explanation of sexual harassment consistent with guidance issued by the DOL and NYSDHR;
provide examples that constitute unlawful sexual harassment relevant to the specific employer’s policies, practices, and industry;
include information pertaining to federal and state law concerning sexual harassment and remedies available to victims of sexual harassment;
include information concerning employees’ rights of redress and all forums available to adjudicate complaints; and
include information addressing conduct by supervisors and any additional responsibilities for such supervisors.
In addition, the training should be conducted in the language that is spoken by the employees. Any new employee must complete sexual harassment prevention training within 30 calendar days of his or her start date.
Jaspan Schlesinger attorneys are available to provide training at your location or our offices. Alternatively, we are happy to assist you in developing your internal prevention training.
The NYS law also contains two other important provisions.
First, employers can no longer enter into agreements with their employees that require the mandatory arbitration of sexual harassment claims. This may render some terms in employers’ form employment agreements and separation agreements unenforceable. Employers should be sure to review these forms and remove any problematic terms.
Second, the new law largely prohibits non-disclosure or confidentiality provisions in agreements if they would prevent an employee from disclosing the underlying facts and circumstances of any sexual harassment. The law does provide an exception under which such a provision may be included if “preferred” by the employee. As a practical matter, before including such a term in any settlement or separation agreement, the employee should request the provision in writing. The agreement should also explicitly state that the term is being included because that is the employee’s preference.
THE NEW YORK CITY LAW
Required Postings and Disclosures
Effective September 6, 2018, , all New York City employers must conspicuously post the anti-sexual harassment rights and responsibilities notice (“Poster”). Every New York City employer must display the Poster in €œemployee breakrooms and other common areas where employees gather,€ and at a minimum the Poster must be displayed in both English and Spanish. The Poster must be at least 8.5 x 14 inches with 12 point font and displayed in color.
Additionally, a factsheet containing similar information to the Poster must be distributed to all employees at their time of hire, which, alternatively, may be incorporated in an employee handbook. You can access the English factsheet here. Jaspan Schlesinger also recommends that each employer obtain a written acknowledgement from its employee regarding this factsheet.
Sexual Harassment Training
Beginning April 1, 2019, all New York City employers with fifteen or more employees (full-time, part-time and interns) must provide interactive anti-sexual harassment training on an annual basis to all employees, including managers and supervisors. For part-time and full-time new hires who are expected to work more than eighty hours in a calendar year, the training must be provided within 90 days of the employee’s start date.
At a minimum, the training must:
include a statement that sexual harassment constitutes discrimination under local, state and federal law;
provide a description, with examples, of what conduct constitutes sexual harassment;
describe the employer’s internal complaint policies and procedures;
describe the complaint procedures available to employees through the New York City Commission on Human Rights (the “Commission”) and the NYSDHR and the Equal Employment Opportunity Commission;
a description of the law’s prohibition on retaliation, including examples;
information concerning bystander intervention, including but not limited to resources that explain how to engage in such intervention; and
a description of the responsibilities of managers and supervisors in the prevention of sexual harassment and retaliation.
Employers are required to keep records of their sexual harassment trainings, including a signed acknowledgment by each employee, for three years. Those signatures may be provided electronically. Employers are obligated to provide their records to the Commission upon request.
Like NYSDHR, the Commission will create an interactive model training program that will be available at no cost on the Commission’s website. However, employers that choose to use this form of training will still be required to provide instruction to their employees about the employer’s specific internal complaint procedures.
Other Changes in the Law
Previously, the New York City Human Rights Law (“NYCHRL”), which prohibits employment discrimination, only applied to employers with four or more employees. SHNNA amends the NYCHRL so that its prohibition on gender-based discrimination now applies to all employers regardless of size.
SHNNA also extends the statute of limitations for claims brought under the NYCHRL for harassment based upon unwelcome conduct that intimidates, interferes with, oppresses, threatens, humiliates or degrades a person based on such person’s gender from one year to three years from the time the harassment allegedly took place.
WHAT THIS MEANS FOR YOU
Employers should familiarize themselves with the new laws as soon as possible. For employers in New York City, this means becoming familiar with each law and making sure to comply with both of them.
At a minimum, every employer must:
Revisit its sexual harassment policy and, if necessary, adopt a new policy.
Prepare an interactive training compliant with the standards set forth in the law and model training module(s).
Review form employment, separation and settlement agreements for now-unlawful arbitration and/or confidentiality provisions.
Train its human resources professionals on employee and new-hire training requirements.
New York City employers must also make sure that their model training programs contain all of the elements required by both laws. They also need to immediately display the Poster and incorporate the factsheet into their employee handbooks or distribute such to each new employee at the time of hire.
For further information regarding these new laws and how to ensure you are compliant, contact Jessica Baquet at firstname.lastname@example.org or David Paseltiner at email@example.com.