The following is a labor and employment alert from Mitchell Silberberg & Knupp LLP:
NEW YORK CITY & STATE IMPLEMENT STRONGER PROTECTIONS AGAINST WORKPLACE HARASSMENT
As states begin to focus heightened attention on sexual harassment in the workplace in the wake of the #MeToo movement, New York State (“NY State”) and New York City (“NYC”) have implemented stronger protections for employees against workplace harassment. The new requirements, which have been passed into law in NY State and NYC, will impact employers’ training, policies & procedures, and employment agreements for New York employees.
New York State:
Under the NY State law, all NY State employers must provide sexual harassment prevention training to all New York employees every year. The NY State Department of Labor, in conjunction with the NY State Division of Human Rights, will produce a model sexual harassment prevention training program. The model program will be interactive and will include: (1) an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights; (2) examples of conduct that would constitute unlawful sexual harassment; (3) information concerning the federal and state statutory provisions regarding sexual harassment and remedies available to victims of sexual harassment; and (4) information concerning employees’ rights of redress and all available forums for adjudicating complaints. The model will also address the role of supervisors with respect to sexual harassment claims. Employers can either use the model program or can establish their own programs, as long as they equal or exceed the minimum standards provided by the model.
This requirement goes into effect on October 9, 2018.
Policies & Procedures:
In addition, the NY State Department of Labor and the NY State Division of Human Rights will develop a model sexual harassment prevention policy. By October 9, 2018, all New York employers must adopt (and distribute to employees) a policy that is compliant with this model policy and contains the following:
- a statement prohibiting sexual harassment;
- examples of prohibited conduct that would constitute sexual harassment;
- information concerning the federal and state statutory provisions covering sexual harassment and remedies available to victims, along with a statement that there may be additional applicable laws;
- a standard complaint form;
- the procedure for timely and confidential investigation of complaints;
- a statement informing employees of their rights of redress and available forums for adjudicating sexual harassment complaints administratively and judicially;
- a statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals who engage in sexual harassment and managers and supervisory personnel who knowingly allow such behavior to continue; and
- a statement that retaliation against individuals reporting sexual harassment or who testify or assist in any proceeding is unlawful.
Effective July 11, 2018, NY State employers are prohibited from entering into agreements that require employees to submit sexual harassment claims to mandatory binding arbitration. Arbitration provisions in collective bargaining agreements are excluded. In light of the U.S. Supreme Court’s rulings on arbitration provisions under the Federal Arbitration Act, it is unclear whether this specific provision will survive legal challenge, but the prohibition is expressly set forth in the statute.
Employers are also prohibited from including confidentiality provisions relating to sexual harassment claims in their severance and settlement agreements unless the employee consents. In order to establish consent, an employer must provide the employee with 21 days to consider whether to consent to the confidentiality provision, and 7 days to revoke that consent. This timing is similar to that required for releases of claims brought under the Age Discrimination in Employment Act (“ADEA”), where employees who are age 40 or older are given these same time periods to consider whether to sign a release and whether to later revoke their signatures.
This law does not impact existing agreements.
Protections for Non-Employeees:
Effective immediately, the NY State Human Rights Law makes it an unlawful employment practice for an employer’s employees to sexually harass “non-employees,” who are defined as contractors, subcontractors, vendors, consultants, or any other person who provides services under a contract in the workplace or an employee of the same, and where the employer or its agents or supervisors knew or should have known that the non-employee was subject to sexual harassment in the employer’s workplace, and failed to take appropriate corrective action.
New York City:
Under the NYC law, employers with 15 or more employees must also conduct training for all new NYC hires within 90 days of employment and annually thereafter. Employers are not required to provide this training to employees who have already received training at another job during the same annual training cycle. The training must be “interactive,” which is defined as “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory forms of training as determined by the [NYC Commission on Human Rights].”
The NYC law contains more specific requirements regarding the subject matter of the training than does the NY State law. Trainings conducted under the NYC law must include: (1) an explanation of sexual harassment as a form of unlawful discrimination under local law; (2) a statement that sexual harassment is also a form of unlawful discrimination under state and federal law; (3) a description of what sexual harassment is, using examples; (4) any internal complaint process available to employees through their employer to address sexual harassment claims; (5) the complaint process available through the NYC Commission on Human Rights, the NY State Division of Human Rights and the United States Equal Employment Opportunity Commission, including contact information; (6) the prohibition of retaliation and examples thereof; (7) Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention; and (8) the specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.
The NYC Commission on Human Rights will develop an online interactive training module that may be used by employers to satisfy these training requirements. If an employer chooses to use the Commission’s module, the employer must also inform all employees of any internal complaint process available to address sexual harassment claims.
These requirements will take effect on April 1, 2019.
Under the NYC law, employers must also post an anti-sexual harassment rights and responsibilities poster and provide an information sheet on sexual harassment to each employee at the time of hire. The poster and information sheet will be created and made available by the NYC Commission on Human Rights.
All Employers Covered:
Effective immediately, for purposes of gender-based harassment claims only, the NYC Human Rights Law now applies to all employers regardless of their size (whereas, for other types of claims, it applies to employers with four or more employees).
Statute of Limitations Extended:
Effective immediately, individuals filing gender-based harassment claims with the NYC Commission on Human Rights will now have three years (rather than one year) to file a complaint.
To prepare for compliance with these new laws, NY employers should conduct a comprehensive review of their policies, procedures and training programs to be sure they meet the requirements of the NY State and NYC laws. NY employers should also review any standard arbitration provisions and severance and settlement agreements relating to sexual harassment claims and revise as necessary.
Please do not hesitate to reach out to us with any questions or to discuss how to implement these new laws.