What the New Anti-Sexual Harassment Laws Mean for You
Both New York State and New York City have recently enacted new legislation that targets sexual harassment in the workplace. As reported in the May 2018 New York Apartment Law Insider (“New York State and City to Mandate Anti-Sexual Harassment Training for Private Employers”), the new legislation mandates anti-sexual harassment training (New York State will require such training beginning in October 2018, while New York City will require such training beginning in April 2019), along with policies that go into effect either immediately or prior to the training. To minimize potential risks to your business, you should be pro-active and immediately review your company policies and procedures. In this #MeToo era, you need to properly engage with your employees and independent contractors to best minimize your risk from potential sexual harassment claims.
NEW YORK STATE LEGISLATION
New York employers can be held liable for sexual harassment of consultants/independent contractors. First, you should be aware that New York State laws regarding sexual harassment (including the anti-sexual training that’s required beginning in October 2018) apply to New York employers of all sizes.
Effective immediately, consultants and other independent contractors (that is, non-employees doing contract work) can sue an employer for sexual harassment. You should revise any present policies to account for the potential harassment of non-employees. For example, you should include language in your company’s anti-sexual harassment policy that applies not only to your employees, but to contractors, subcontractors, vendors, consultants, or other individuals under contract with your company. You should also notify any supervisory staff of this change, especially employees who may “supervise” any contractors or independent contractors.
Non-disclosure/mandatory arbitration clauses are banned. As of July 11, 2018, mandatory workplace arbitration of sexual harassment claims and non-disclosure agreements in sexual harassment settlements are banned (unless contained in collective bargaining agreements). I would recommend that you immediately review your contracts and remove any such arbitration clause regarding sexual harassment. Further, you should review any severance agreements and remove any non-disclosure clause regarding sexual harassment.
Anti-sexual harassment training/policies are required. Beginning on Oct. 7, 2018, employers must provide their employees (including supervisors and managers) with annual anti-sexual harassment training. The New York State Department of Labor will publish a sample computerized training program that employers can use, or they can create their own program provided it complies with the minimum standards set forth by the state.
You can wait to see what New York State’s program will be and use this “one-size-fits-all” model. You can also, with the assistance of an attorney, be pro-active and develop your own training program to meet your specific needs. Trainings—at a minimum—must include: (1) an explanation of sexual harassment; (2) examples of unlawful conduct; (3) information on state/federal laws regarding harassment and the remedies available to victims; and (4) information on employees’ rights and the forums they can use to adjudicate complaints. While there is no record-keeping requirement under the law, you should, for your protection, keep track of such attendance.
By Oct. 7, 2018, employers must implement an anti-sexual harassment policy. The New York State Department of Labor is charged with publishing a model policy that employers, if they wish to, may adopt.
If you currently have a policy, you may have to revise it because, as of Oct. 7, 2018, it must, among other things:
- Provide examples of conduct that would constitute sexual harassment;
- Include a complaint form and a procedure for the investigation of complaints; and
- Inform employees of all available forums for adjudicating their complaints.
I would advise that you review your anti-sexual harassment policy at this time to ensure that it conforms with the new legislation.
NEW YORK CITY LEGISLATION
Expansion includes employers of all sizes. Small employers are now potentially liable for sexual harassment under the New York City law. Effective immediately, all employers—regardless of size—will be subject to potential liability for sexual harassment claims. Previously, only employers of four or more employees were subject to the law.
Statute of limitations extended for sexual harassment claims. Effective immediately, the statute of limitations for filing sexual harassment claims with the New York City Commission on Human Rights has risen from one year to three years. You should be guided accordingly.
Interactive anti-sexual harassment training. Employers should be on the lookout for the New York City model anti-sexual harassment training program, which should be posted prior to April 2019. In the meantime, you can develop your own training program, provided its standards are equal to or exceed those required by the city.
In short, employers of all sizes should make sure that they have sufficient anti-sexual harassment policies and training in place by the requisite deadlines. In the meantime, you should review your policies so that you best minimize your liability from potential sexual harassment claims.