United States: New York Says #MeToo To Stronger Sexual Harassment Protections: A Summary Of Action Items For Employers

In the wake of the #MeToo movement and the nationwide discourse over the prevalence of sexual harassment in the workplace, New York State and New York City have taken aggressive steps to implement stronger protections against workplace harassment. These new protections, which are now law in New York State and which soon will be law in New York City, will require New York employers to revise their policies, procedures and agreements, deliver new training, and post and distribute new notices. Below we summarize the new requirements and other changes in the law and discuss next steps.

Given the number of new obligations these laws impose on employers, the list below is aimed at helping to prioritize and explain the key action items for employers. We have noted critical distinctions between the New York State law and the New York City law. The effective dates for key provisions of the laws also vary, as noted in the discussion below. For ease of reference, the chart below summarizes the key dates – but note that many of the effective dates of the New York City law will depend on when the Mayor signs these bills into law.

KEY DATE SUMMARY

ACTION ITEMS

1. Employers must conduct interactive sexual harassment training every year, and New York City employers must do so for new hires immediately.

• In New York State, all employers must provide sexual harassment prevention training to all New York employees. In New York City, employers with 15 or more employees must ensure that this training is also consistent with the City's training requirements for all employees (including interns) employed in the City.
• Employers will be required to conduct this training for existing employeesevery year. In New York City, employers must conduct training for all new NYC hires within 90 days of employment. Employers are not required to provide this training to employees who have already received training at another job during the same annual training cycle. This is a significant development as it will force employers to prioritize annual training.
• The training must be "interactive." The City law defines "interactive" 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 Commission." Although the interactive component does not mandate an in-person instructor or a live session, we strongly recommend live, in-person training as the cornerstone of an effective training program.
• Both the City and the State will develop model training programs, but employers can develop and use their own programs so long as they satisfy certain requirements (such as providing examples of conduct that would constitute unlawful sexual harassment). The City law will also require training on bystander intervention. We will update this blog when more information is available about the New York State and New York City model training programs.
• The City law will also require employers to generate and keep records of all trainings, including obtaining signed acknowledgments, and maintain them for three years. For all employers, we recommend keeping such records, including for a longer period of time, as they may prove useful in defending against harassment claims.
• The annual training requirement under New York State law goes into effect on October 9, 2018 – less than six months from now, while the annual and new hire training requirements under City law will take effect on April 1, 2019. Employers should consider the best time of year to conduct such training, the effective dates of both laws, and how many sessions they will require based on their employee population, including accounting for the number of supervisory and managerial employees.

2. Employers must revise their sexual harassment policies, including complaint reporting policies and procedures.

• Under New York State law, the New York State Department of Labor and the New York State Division of Human Rights will collaborate to develop a model sexual harassment prevention policy. Effective October 9, 2018, all New York employers must adopt a policy that is compliant with the model sexual harassment prevention policy's standards.
• An employer's policy must contain the following critical components:
  
  
  1. A statement prohibiting sexual harassment;
  2. Examples of prohibited conduct that would constitute sexual harassment;
  3. 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;
  4. A standard complaint form;
  5. The procedure for timely and confidential investigation of complaints;
  6. A statement informing employees of their rights of redress and available forums for adjudicating sexual harassment complaints administratively and judicially;
  7. 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
  8. A statement that retaliation against individuals reporting sexual harassment or who testify or assist in any proceeding is unlawful.
• Any updated policy should also account for the New York State law's new protections against sexual harassment for "non-employees," which we address further below.
• Many employer policies already include much of this information, but few current policies will meet all of these requirements. Employers should immediately review and revise their policies on sexual harassment to ensure full compliance before the October deadline.

3. Employers must distribute written policies, forms, information sheets, and posters.

• Employers must distribute the new model sexual harassment policy to employees by October 9, 2018, and it must include, among other things, a standard complaint form.
• City employers will have to display a new anti-sexual harassment poster created by the NYC Commission on Human Rights in employee breakrooms or other common areas where employees gather. Employers must display this poster in English and Spanish, although it appears that the Commission may extend this to other languages.
• City employers must distribute to all new hires an information sheet on sexual harassment designed by the Commission, although employers may also include this sheet in their employee handbook. While the law requires distribution of the poster in English and Spanish (and potentially other languages), it does not mandate dual or multi-language poster distribution; instead it mandates that the Commission make the poster available to employers in English and Spanish and other languages it deems appropriate. We expect the Commission to issue clarifying guidance on this issue.
• The City's new poster and information sheet distribution requirements will become effective about 4 months after the Mayor signs the law.

4. Employers must remove mandatory arbitration provisions from their employment agreements.

• Effective July 11, 2018, the New York State law will prohibit employers from entering into agreements that require the employee to submit sexual harassment claims to mandatory binding arbitration. Arbitration provisions that are included as part of a collective bargaining agreement, however, are excluded from this prohibition. Employers asking "can New York State require this?" may have that question answered by the Supreme Court sometime before the end of June. Until then, employers should prepare to eliminate these provisions from their agreements.
• Also effective July 11, 2018, employers may not include confidentiality provisions in their severance and settlement agreements relating to sexual harassment claims unless the employee consents. An employer must provide the employee with 21 days to consider whether to consent to the confidentiality provision, and 7 days to revoke their consent (similar to what is required when employers seek a release of age discrimination claims under federal law from an employee 40 years or older).
• Existing agreements will not be impacted by this new restriction.
• In addition, we want to remind employers that under a provision of the recently enacted Federal Tax Cuts and Jobs Act, any amounts an employer pays to settle a sexual harassment claim, including attorneys' fees, are no longer deductible from federal taxes if the claim is subject to a confidentiality clause.

5. Employers must account for other changes in the law that provide greater legal rights and remedies for those subjected to gender-based harassment.

• For purposes of gender-based harassment claims only, the NYC Human Rights Law now applies to all employers regardless of their size. Employers with 4 or more employees will still be insulated from claims of other types of discrimination and harassment. This change is effective immediately.
• Those individuals seeking to file a gender-based harassment claim with the New York City Commission on Human Rights will now have 3 years instead of 1 year in which to file a complaint before the statute of limitations expires, which now aligns it with the statute of limitations period utilized if the employee brought the claim directly in court. This change is also effective immediately.
• The New York State Human Rights Law now 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. The law appears to set forth its own contractor classification standard, noting: "the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of the harasser shall be considered." This expands the application of the New York State Human Rights Law to protect an entirely new class of individuals that have historically been excluded.
• While not addressed specifically in the new City law, it is worth noting for NYC employers that, in addition to the obvious and important benefit of reducing or eliminating the potential for sexual harassment in their places of employment, these changes may also benefit them in the courtroom and before government agencies. The NYC Human Rights Law allows for the reduction or elimination of potential civil penalties and punitive damages where employers can prove that they have effective policies, programs and procedures in place, and more specifically, that they had implemented and complied with Commission-established policies, programs and procedures at the time of the alleged wrongdoing. Before now, the Commission had never established such policies, programs and procedures that would allow employers to take advantage of this statutory provision, but the new City law may change that. This will, in turn, impact the value of discrimination claims.

NEXT STEPS

To prepare for compliance with these new laws, employers should immediately:

• Alert and obtain buy-in from senior leadership, which is critical for complying with these laws and cultivating a culture of accountability.
• Conduct a comprehensive review and update of harassment policies, procedures and training programs to be sure all policies meet the mandates of the State law, and if applicable, the City law. Make sure that any updates account for "non-employees" and that managers, supervisors, and Human Resources staff are trained on how to handle complaints of sexual harassment.
• Stay tuned for additional information and guidance from the NYS Department of Labor and the NYC Commission on Human Rights, including the release of new posters and information sheets, training modules, model policies, and other forms. Also, consider reviewing reports from the Commission and the EEOC that examine the issue of workplace harassment and offer guidance and best practices for employers to identify and prevent such harassment.
• Conduct a review of standard severance and settlement agreements relating to sexual harassment claims, including the agreements' non-disclosure and arbitration provisions, and revise as necessary to comply with the new laws, while being mindful that the viability of the prohibition on mandatory arbitration clauses may be called into question.
• Review compliance with obligations in other jurisdictions that have mandatory training requirements, such as California and Connecticut. Coordinate compliance across all programs where possible.
• Don't delay, but don't panic. While these new requirements may seem overwhelming at first, most employers have been thinking about these issues and have already addressed many of the concepts present in these new obligations. For those employers, it's about enhancement. For those who haven't thought about these issues for some time, they have more work to do. In either case, it is time for all employers to ensure they have an effective sexual harassment prevention program suited to today's workplace and legal landscape.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.