URGENT NY UPDATE: New York State and NYC Implements Sexual Harassment Laws

New York State and New York City have passed sweeping laws aimed at preventing sexual harassment in the workplace and limiting the use of mandatory arbitration and non-disclosure provisions in resolving sexual harassment claims.

These new protections, which are now law in New York State and New York City, will require New York employers to revise their policies, procedures and agreements, deliver new training, and provide employees with additional information about sexual harassment.

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 employees every 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..
• 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.
• 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 employers to generate and keep records of all trainings, including obtaining signed acknowledgements, and maintain them for three years.

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.

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.
• Employers will have to display a new anti-sexual harassment posters created by the NYC Commission on Human Rights. Employers must display this poster in English and Spanish.
• City employers must distribute to all new hires an information sheet on sexual harassment.

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
• Also effective July 11, 2018, employers may not include confidentiality provisions in severance and settlement agreements that relate to or release sexual harassment claims unless the inclusion of such a provision is the employee’s preference. An employer must provide the employee with 21 days to consider whether to agree to the inclusion of the confidentiality provision, and 7 days thereafter to revoke their consent.
• Existing agreements will not be impacted by this new restriction.

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.