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New York Legislation Update: Sexual Harassment

As part of the nationwide push to respond to the #MeToo movement and the amplified dialogue around sexual harassment in the workplace, both New York State and New York City are gearing up to implement workplace anti-sexual harassment measures.

New York’s 2019 Budget Contains Anti-Sexual Harassment Measures in the Workplace

A state budget agreement recently approved for the 2019 fiscal year includes a number of workplace anti-sexual harassment directives aimed at both government and private employers.  Among other things, these measures will:

  1. Prohibit mandatory arbitration clauses included in claims for sexual harassment in the workplace: As part of the budget, the New York Civil Practice Law and Rules (“CPLR”) will be amended to void any section in an employment-related agreement entered into after the effective date of the law that requires the parties to submit sexual harassment claims to mandatory binding arbitration.  The purpose of amending the CPLR to void such agreements is to remove all insulation of sexual harassment claims from any independent court review.  The amendments to the CPLR prohibiting mandatory arbitration clauses for sexual harassment claims are set to take effect on July 11, 2018.

  2. Prohibit nondisclosure clauses in sexual harassment settlements or agreements unless the complainant prefers the condition of confidentiality: This provision of the budget will amend the CPLR and New York State’s General Obligations Law to bar the use of nondisclosure clauses or agreements in any resolution or settlement of a sexual claim, unless the complainant requests and agrees to the terms of the nondisclosure clause terms.  The amendments will invalidate any such provision that aims to prevent the disclosure of the facts or circumstances that lie behind the sexual harassment claim.  If the complainant prefers to include any nondisclosure language in a settlement or agreement, the language must be provided to all parties included in the agreement.  The complainant will have 21 days to consider the agreement containing the nondisclosure clause and an additional 7 day revocation period to rescind his or her signature after signing.  The prohibitions on the use of nondisclosure clauses in settlements or agreements relating to claims of sexual harassment will take effect on July 11, 2018.

  3. Provide a model sexual harassment training and prevention program: The law will require New York employers to distribute written anti-harassment policies and to conduct annual anti-harassment training for all employees.  The New York State Division of Human Rights and The New York State Department of Labor will work together to create a model sexual harassment training and prevention program and a model written policy.  New York employers may either adopt the model policy or create their own policy that meets or exceeds the standards of the model policy.  These requirements will be effective as of October 9, 2018.

  4. Implement workplace anti-sexual harassment measure for public employers and state contractors: The budget includes anti-sexual harassment directives that specifically target public employers and state contractors.  Any state employee found culpable of committing sexual harassment will be required to reimburse any public entity or state agency-funded damages for award payments within 90 days of the award payout by the State.  Further, any bid for a state contract must include language avowing that the bidding entity has enacted a written policy on workplace sexual harassment and that all of its employees receive annual training on sexual harassment prevention.  Absent a signed statement providing the reasons why the entity cannot meet those requirements, a bid that does not include such language shall not be considered.  The budget provisions for workplace anti-sexual harassment for public employers and state contractors are proposed to take effect on January 1, 2019.

  5. Extend liability for employers to sexual harassment against “non-employees”: The budget also amends the New York State Executive Law to broaden liability under the New York State Human Rights Law to permit sexual harassment claims by “non-employees” in their workplace.  Under the amendment, an employer may be held liable to a consultant, vendor, contractor, subcontractor, or other person providing services under a contract in the employer’s workplace with regards to sexual harassment where the employer, its supervisors or agents knew or should have known about the harassment and failed to take appropriate and immediate corrective action.  When reviewing such cases, the deciding party will take into account the employer’s control over the conduct of the harasser.  These protections for non-employee harassment are now in effect.

The above budget provisions were signed into law as part of the 2019 New York State budget on April 12, 2018.

New York City Proposes Legislation Requiring Mandatory Sexual Harassment Training and an Expansion of Employers Covered under the New York State Human Rights Law.

On April 11, 2018, the New York City Council passed, as part of an 11 bill package, a bill that would require all businesses in New York City that employ at least 15 people to conduct training to prevent workplace sexual harassment.

The bill provides that the annual sexual harassment training would be effective as of September, 2018 and requires that the training includes, but need not be limited to, the following:

  1. A description of sexual harassment that includes practical examples;

  2. An explanation that sexual harassment constitutes unlawful discrimination under local, state and federal law;

  3. A description of the internal complaint process employees may use if they are sexually harassed in the workplace;

  4. A description of the complaint process that includes contact information under local, state and federal law;

  5. A statement describing the importance of bystander intervention so as to alert employees as to what to do if they witness an incident of sexual harassment; and

  6. A statement that the employer explicitly prohibits retaliation with examples of what constitutes retaliation.

Additionally, employers subject to the law would be required to provide managerial and supervisory personnel with additional annual workplace sexual harassment training that details their duties and responsibilities in preventing such conduct and the appropriate manner in which to handle complaints from employees.  Employers will also be compelled to maintain records of compliance with the law.  Employers who fail to maintain records of compliance are subject to potential civil penalties up to $500 for a first-time violation, and up to $2,000 for each additional violation.

The training must be “interactive” in nature, but is not required to be live.  The NYC Commission on Human Rights will be developing publicly available online training modules, which employers may use to satisfy the requirement of the law.

The legislation also includes a bill that requires all employers in New York City to post an anti-sexual harassment responsibilities and rights poster in the workplace to be provided by the New York City Human Rights Commission.  Also, an information sheet on sexual harassment must be distributed to every employee at the time of hire.  Civil penalties will be enforced against employers that fail to comply with the notification or posting requirements.

The bill awaits the signature of Mayor DeBlasio.  If enacted, it will go into effect on April 1, 2019.  By that time, New York employers will have already been implementing the requirements of the similar state law regarding sexual harassment training (discussed above) for several months.  Employers in New York City will need to be aware of, and fully compliant with, the requirement of both the state law and city law.

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