United States: New York's Expansion Of Anti-Sexual Harassment Legislation In The Workplace

July 10, 2018 - With increased awareness and the spotlight on sexual harassment in the workplace, the State and City of New York enacted comprehensive sexual harassment legislation in the past few months. On April 12, 2018, Governor Andrew M. Cuomo signed legislation specifying required steps employers must take to address workplace sexual harassment. On May 9, 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act.

Employers should keep in mind that, while some provisions of these laws went into effect immediately, the effective date of certain others is around the corner -- on July 11, 2018. For example, New York employers should ensure that settlement agreements of employees' sexual harassment claims do not include a non-disclosure provision unless the employee requests confidentiality.

Below is a chart and brief summary of key provisions of the New York State and City legislation with the respective effective dates.

New York State Laws:

Effective immediately:

Upon the passing of the NYS law on April 12, 2018, under Section 296-D of the New York State Human Rights Law, all employers may be held liable for sexual harassment of non-employees in the workplace, such as contractors, subcontractors, vendors, and consultants.

Effective July 11, 2018:

Mandatory Arbitration Clauses

Under Section 7515 of the Civil Practice Law and Rules ("CPLR"), employers are prohibited from including mandatory arbitration provisions in written employment contracts regarding allegations or claims of sexual harassment, unless such a prohibition contradicts federal law. This prohibition applies to contracts entered into on or after the July 11, 2018 effective date. Note: This Section may be challenged as preempted by the Federal Arbitration Act.

Non-disclosure Agreements

The General Obligations Law Section 5-336 and CPLR Section 5003-b prohibit employers from including a non-disclosure provision in sexual harassment settlements, unless "such term or condition is the complainant's preference." The new provision grants the complainant 21 days to consider the non-disclosure provision, and 7 days to revoke it even after signing it (while the remainder of the settlement agreement remains in force).

Effective October 9, 2018:

Sexual Harassment Prevention

As mandated by Section 201-G of the New York Labor Law, the Department of Labor is required to consult with the Division of Human Rights to draft and publish a model sexual harassment prevention guide and prevention policy as well as a model sexual harassment prevention training program. Employers are required to adopt the model policy and training program or establish a prevention policy and training program that "equals or exceeds the minimum standards" established by the Department of Labor and the Division of Human Rights. Employers must provide all employees with written copies of the policy and conduct annual training. Both the guide and training program are intended to prevent workplace sexual harassment.

Effective January 1, 2019:

State Contract Bids and Sexual Harassment Policies

The New York State Finance Law, Section 139-L, codifies requirements that all contract bidders with the State of New York, or any state department or agency, must certify that they have implemented written workplace sexual harassment prevention policies and provide annual training to all employees.

NYC's Stop Sexual Harassment Act:

The Stop Sexual Harassment in NYC Act similarly reflects the state's initiative to stop sexual harassment in the workplace and provide training to employees by amending various sections of the New York City Administrative Code.

Effective immediately:

Upon passing the Act on May 9, 2018, the statute of limitations for claims of unlawful gender-based harassment under Section 8-109(e) was lengthened from 1 year to 3 years. In addition, the NYC Administrative Code expanded those employers covered by the Code for claims of sexual harassment to include those with fewer than four employees. Prior to the amendment, only employers with four or more employees were covered.

Effective September 6, 2018:

Sexual Harassment Information Display

Employers are required to conspicuously post displays outlining anti-sexual harassment rights and responsibilities in either employee break rooms or other common areas. Employers are also required to distribute anti-sexual harassment information sheets to all new employees upon hiring.

Effective April 1, 2019:

Mandatory Anti-Sexual Harassment Training

Significantly, employers with 15 or more employees must conduct annual, interactive anti-sexual harassment training for all employees employed in New York City.

New York Anti-Sexual Harassment Legislation in the Workplace

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.