On April 11 and 12, 2018, the landscape surrounding sexual harassment claims was rewritten by major amendments to applicable New York State and New York City law. Many of the measures mirror legislation that has been introduced in other states and cities as part of a nationwide push in response to the #MeToo movement and the subsequent increased dialogue around workplace sexual harassment. New York is at or near the forefront of this movement, and employers need to take action to remain compliant with their new legal obligations.
New York State
Embedded in the New York State budget, signed into law on April 12, 2018 by Governor Andrew Cuomo, are important amendments targeting sexual harassment that place affirmative obligations on New York employers, as outlined below. Although the amendments create a series of open questions, it is critical that employers become aware of the changes in general and take the necessary steps to come into compliance as soon as possible.
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Effective immediately, the New York Human Rights law, which forbids sexual harassment of employees, has been expanded and now protects "non-employees," including contractors, subcontractors, freelancers, vendors, consultants and anyone else providing services to an entity pursuant to a contract.
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Beginning July 11, 2018, mandatory arbitration clauses regarding claims of workplace sexual harassment will be prohibited; any contract entered into after the effective date of this legislation, with certain exceptions, will be rendered void with respect to any portion that violates this provision.
The law also prohibits the use of non-disclosure clauses in settlement agreements or other agreements related to claims of sexual harassment, unless it is the express wish of the claimant to include such a clause.
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Effective October 9, 2018, employers will be obligated to distribute anti-harassment policies in the workplace, as well as to conduct annual anti-harassment training for all employees. This training must be based on models to be published by the New York State Department of Labor (DOL) and Division of Human Rights (DHR).
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Effective January 1, 2019, bids on certain state contracts will be required to include language affirming that the bidding entity has implemented a written anti-harassment policy and that the entity provides annual anti-harassment training to all of its employees in compliance with the standards set by the DOL and DHR.
New York City
On April 11, 2018, New York City also passed legislation aimed at preventing sexual harassment in the workplace called the "Stop Sexual Harassment in NYC Act" (NYC Act). The new law, which NYC Mayor Bill de Blasio is expected to sign in the coming days, imparts additional requirements upon New York City employers. NYC employers must be familiar with and abide by both laws.
The most significant portion of the NYC Act also mandates annual anti-sexual harassment training for all employees. This training requirement applies to private employers of 15 or more employees in NYC and becomes effective as of April 1, 2019. Such training must be provided to all existing employees come next April, and to all new employees thereafter within 90 days of employment. Employees will be required to sign acknowledgement forms asserting they have received the annual training, copies of which the employer must preserve for three years in conjunction with records of the training provided.
Employers who are covered under both state and city laws must ensure their training procedures are compliant with each. To be clear, businesses with four or more employees must comply with the state training requirement, and those with 15 or more employees in NYC must provide training compliant with both laws.
Additional changes due to the NYC Act include:
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The New York City Human Rights Law (NYCHRL) now applies to all NYC employers (regardless of size) with regards to sexual harassment. (All other portions of the NYCHRL are applicable only to employers of four or more employees within the city.) In other words, claims of sexual harassment may now be brought against any employer with at least one employee in NYC.
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Where previously individuals had one year from the date of the alleged conduct to file sexual harassment claims, they now have three years to file sexual harassment claims with the the New York City Commission on Human Rights (City Commission) or in court. This is effective immediately.
There are no changes to the statute of limitations for other claims under the NYCHRL.
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Employers must post new anti-sexual harassment posters, in both English and Spanish, with their other workplace posters. The City Commission will make such posters available 120 days after the mayor signs the NYC Act.
It is imperative that employers respond to these amendments.
