Both New York State and New York City recently passed laws to combat sexual harassment.  Read below for more detailed information.

 

New York State Law Update

On April 12, 2018, Gov. Andrew Cuomo signed into law the 2019 New York State Budget, which updates the State’s sexual harassment laws. This update is part of Gov. Cuomo’s 2018 Women’s Agenda for New York: Equal Rights, Equal Opportunity.  The new laws protect independent contractors from sexual harassment in the workplace; provide for a model sexual harassment policy and training; prohibit nondisclosure agreements (unless confidentiality is the preference of the victim); and they also ban mandatory sexual harassment arbitration clauses.

 

Non-Employees/Independent Contractors

The state legislation adds a new section to the New York Human Rights Law that prohibits sexual harassment of “non-employees” in the workplace.   Non-employees include contractors, subcontractors, vendors, consultants, or other persons providing services pursuant to a contract in the workplace—or an employee of any of the above.

Sexual Harassment Policy & Training

Beginning October 9, 2018, all New York employers will be required to implement an anti-sexual harassment policy that either meets or exceeds the minimum standards established by the state model sexual harassment prevention policy.  The policy must be distributed to employees in writing on an annual basis.  No signed acknowledgment from employees is required under the law, though the state encourages employers to obtain one.

All New York employers will be required to implement an annual interactive sexual harassment prevention training program that either meets or exceeds the minimum standards established by the state’s sexual harassment training model.  All employees must be trained by October 9, 2019 (date was extended from January) , and must be trained annually thereafter.  New hires must be trained within 30 days.

 

Nondisclosure Agreements

Effective July 11, 2018, the state law requires that any resolution of a sexual harassment claim only use a nondisclosure agreement if it is the preference of the victim. The victim’s preference must be stated in writing, the victim has 21 days to acknowledge the agreement,  and the victim will have at least 7 days to revoke the agreement after its execution.

 

Mandatory Arbitration

All contracts/agreements entered into on or after July 11, 2018, are prohibited from requiring sexual harassment claims to be submitted to mandatory arbitration, unless the mandatory arbitration clause is part of a collective bargaining agreement.  It is yet to be determined how this law will hold up in accordance with the Federal Arbitration Act.

 

State Contractors

Beginning January 1, 2019, a contractor submitting a bid for a state contract will be required to affirm that it has implemented a written workplace policy addressing sexual harassment prevention and that it provides annual training for all employees.

 

New York City Law Update

On May 9, 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act.  The Act amended the City Human Rights Law to allow gender-based harassment claims against any employer, regardless of size, and extends the statute of limitations for sexual harassment claims from one year to three years.  In addition, Local Laws 95 & 96 of 2018 were enacted to require employers to conduct annual interactive anti-sexual harassment training and to display a rights and responsibilities information notice.

 

Statute of Limitations

The statute-of-limitations for filing an administrative complaint with the New York City Commission on Human Rights (NYCCHR) for gender-based harassment will be increased from one to three years from the date of the alleged harassment, which is consistent with the current three year statute of limitations that applies to gender-based harassment claims brought in state court.

 

Sexual Harassment Training

Effective April 1, 2019, the annual training requirement applies to NYC employers who employ 15+ employees.  New employees must complete the training within 90 days of hire.  All employees (including full-time, part-time, and interns) must complete the training if they work more than 80 hours for the employer in a calendar year.  Employers are responsible for keeping signed acknowledgement forms from employees and a record of all training for a period of three years.  The NYCCHR is set to develop an online, interactive training module that may be used by employers at no cost.  The training module has not yet been created.

 

Notice and Fact Sheet

A workplace poster must be displayed by all New York City employers, regardless of size, beginning September 6, 2018.  The Notice must be posted in both English and Spanish; the Spanish version of the poster can be found here.

Employers must also distribute an information sheet on sexual harassment that must be distributed to employees at time of hire.  Employers may either distribute this information sheet to all current employees and new hires, or they may place it in an employee handbook.

 

City Contractors

Finally, city contractors will be required to include their practices, policies, and procedures “relating to preventing and addressing sexual harassment” as part of an existing report required for certain contracts pursuant to the City Charter and corresponding rules.

 

Employer Action Items

New York State

  1. Immediate Action:
    1. Employers should review mandatory arbitration clauses and revise, as necessary.
    2. Employers should be aware of the state’s new non-disclosure agreement policy as it relates to sexual harassment.
  2. On or before October 9, 2018: Employers must implement a written sexual harassment policy that meets or exceeds the state standards and distribute it to employees.
  3. On or before October 9, 2019 (date was extended): Employers must provide an interactive training to all employees (and annually thereafter).  All new hires must complete training within 30 days of hire.

 

New York City

  1. Immediate Action:
    1. All NYC employers must post the NYC anti-harassment poster in both English and Spanish in a conspicuous area by September 6, 2018.
    2. All employers must issue an information sheet to all new hires at time of hire. Alternatively, the information sheet can be included in an employee handbook.
  2. On or before April 1, 2020:
    1. All employees of NYC employers with 15 or more employees are required to complete anti-sexual harassment training within the first 90 days of hire, and annually.  Employers will have one year to implement the training program from April 1, 2019 (to be completed by April 1, 2020).
    2. Employers must keep records of the training and signed employee acknowledgment forms for a period of three years.

 

Additional Resources

New York State

 

New York City

 

The information and materials on this blog are provided for informational purposes only and are not intended to constitute legal or tax advice. Information provided in this blog may not reflect the most current legal developments and may vary by jurisdiction. The content on this blog is for general informational purposes only and does not apply to any particular facts or circumstances. The use of this blog does not in any way establish an attorney-client relationship, nor should any such relationship be implied, and the contents do not constitute legal or tax advice. If you require legal or tax advice, please consult with a licensed attorney or tax professional in your jurisdiction. The contributing authors expressly disclaim all liability to any persons or entities with respect to any action or inaction based on the contents of this blog.

Joanna Castillo– Joanna is the Client Compliance Manager for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Joanna enjoys live music, college football, travel, and walking her dog in Golden Gate Park.