New York State's new sexual harassment prevention laws will require action by all New York employers

On April 12, 2018, New York State Governor Andrew Cuomo signed into law new measures aimed at preventing sexual harassment. We summarized these provisions in detail in our legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws, published on April 11th, in anticipation of the bill being signed into law. The new law requires New York State employers to adopt sexual harassment prevention policies and conduct annual training on such policies, restricts the use of non-disclosure and arbitration provisions related to claims of sexual harassment, and extends workplace protections against sexual harassment to non-employees. The new law requires prompt action on the part of most, if not all, New York State employers.

Mandatory sexual harassment prevention policies and training

Effective October 9, 2018, every New York State employer (regardless of size and including those who employ only domestic and household employees) will be required to adopt a sexual harassment prevention policy that meets specified requirements. New York State employers who currently have anti-harassment policies in place will likely need to update their policies, as most policies that we have seen do not cover every item that is required by the new law.

The new law also mandates that all New York State employers conduct annual sexual harassment prevention training for all employees. The training program must be interactive and is required to include certain specified content.

Beginning January 1, 2019, any employer submitting a bid to New York State or any of its public departments or agencies for a public contract will need to include a prescribed statement in the bid certifying compliance with the sexual harassment prevention policy and annual training requirements. Failure to provide such certified statement may result in ineligibility for the contract.

Restrictions on non-disclosure provisions

Effective July 11, 2018, non-disclosure provisions in agreements settling claims of sexual harassment will be prohibited, unless inclusion of the non-disclosure requirement is the complainant’s preference. Notwithstanding this prohibition, the new law permits a non-disclosure provision to be presented to a complainant in connection with a settlement in accordance with a procedure similar to those under the Older Workers Benefit Protection Act (the law that governs releases of age discrimination claims under federal law). The new law states that the complainant must have 21 days to consider the non-disclosure provision and if, after 21 days, the complainant’s preference is to include the provision, then the parties must memorialize such preference in a writing signed by all parties. There must also be a seven-day revocation period following the execution of such agreement, and the agreement may not take effect until the seven-day revocation period has expired without the complainant’s revocation.

Restriction on mandatory arbitration clauses

Effective July 11, 2018, contractual provisions that require individuals to resolve claims of sexual harassment via arbitration will be prohibited. Also, the new law expressly provides that if there is a conflict between this prohibition and a collective bargaining agreement, the collective bargaining agreement will control.

This restriction on mandatory arbitration clauses has a very significant carve-out that is likely to limit its impact on most private employers. This restriction will not apply in those situations where it is inconsistent with federal law. This is important because the Federal Arbitration Act (FAA) has broad application. It applies to arbitration contracts involving or affecting interstate commerce (other than employment contracts for transportation workers), and in the modern age, few employment relationships have no nexus to interstate commerce. Therefore, only few employee arbitration agreements will fall outside the scope of the FAA. Where an arbitration clause is covered by the FAA, this new New York State restriction on mandatory arbitration clauses should not apply.

Protections for non-employees

The new law extends protections against sexual harassment to non-employees in the employer’s workplace, including contractors, subcontractors, vendors, consultants, and other individuals providing services pursuant to a contract in the workplace. Unlike the other new provisions discussed above, which provide a short grace period for compliance, these expanded protections for non-employees took effect on April 12, 2018, when the law was enacted.

Next steps for employers to take now

While we await New York State’s issuance of a model sexual harassment prevention policy and training program, and regulations and/or other guidance clarifying aspects of the new law, employers will want to review their existing policies and training programs covering sexual harassment and consider what updates will be needed to comply with the new law. New York State employers that do not currently have such policies and/or training programs will need to adopt them to comply with the new law. Given the focus of the new law on the role that supervisors play in reporting and handling incidents of sexual harassment, employers should make sure that their supervisors are properly trained on the law and their employer’s policy. Finally, New York State employers should review their employment-related forms to determine if their non-disclosure and/or arbitration provisions need to be revised in light of the new law.

New York City poised to enact additional sexual harassment prevention measures

New York City employers should stay tuned for further developments, as last week the New York City council passed a number of bills designed to strengthen sexual harassment protections. These bills are expected to be signed into law by the Mayor in the near future, and once enacted, will impose additional requirements on New York City employers, including the following:

Beginning April 1, 2019, New York City employers with 15 or more employees are required to conduct annual anti-sexual harassment training for all employees, including interns. The training must meet specified requirements (some of which are in addition to those required by the new New York State law discussed above). Employers must keep records of all such trainings, including signed employee acknowledgements, for at least three years.
Beginning 120 days after the bill is signed into law, New York City employers must provide a sexual harassment information sheet to each new hire at the time of hiring (which can be done via inclusion in an employee handbook), and conspicuously post in the workplace an anti-sexual harassment poster, both of which will be published by the New York City Commission on Human Rights.

Once enacted, the New York City law will also:

Expand the prohibition of gender-based harassment to all employers, regardless of the number of employees (under existing law, only employers with four or more employees or independent contractors are covered by the New York City Human Rights Law’s anti-discrimination provisions); and
Lengthen the statute of limitations for filing claims of gender-based harassment from one year to three years from the time that the alleged harassment occurred.