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Paul Zimmerman
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#MeToo: What Employers Need to Know About New Laws in New York State and City Concerning Workplace Sexual Harassment

The New York State Legislature and New York City Council have passed sweeping anti-sexual harassment laws expanding the landscape of employers’ existing obligations in addressing sexual harassment in the workplace. The laws follow on the heels of the #MeToo movement and are aimed at providing greater protection against sexual misconduct on the job. Here’s a rundown of the new mandates, with the deadlines for compliance:

New York State Legislation:

Effective immediately, the laws expand the scope of the New York State Human Rights Law (NYCHRL) so that its protections against sexual harassment in the workplace now apply to employees and non-employees (e.g., contractors, subcontractors and vendors) alike. The NYCHRL is also amended to allow claims of gender-based harassment by all employees, no matter the size of their employer, and extend the statute of limitations for such claims to three years after the occurrence of alleged harassment.

Effective July 11, 2018, employers can no longer require confidentiality and non-disclosure provisions in agreements written to resolve sexual harassment claims, except when it’s the employee’s desire to include these terms. Rather, an employer’s settlement agreement may include confidentiality language only when it’s the settling individual’s preference. And even if it is, the contract must provide a 21-day period for the employee to consider whether to accept the confidentiality provision(s) covering sexual harassment claims, along with a 7-day period following the signing of a settlement agreement to revoke it.

Effective July 11, 2018, employers are prohibited from requiring employees to agree to mandatory arbitration of sexual harassment claims.(As of this writing, it’s unclear whether this provision will withstand federal preemption by the Federal Arbitration Act and the recent decision by the Supreme Court of the United States in Epic Systems Corp. v. Lewis. Nevertheless, employers should consider what impact this requirement will have on existing agreements and employee handbooks).

Effective October 9, 2018, employers are required to adopt and implement written anti-harassment policies and provide annual sexual harassment training to all employees. The policies and training must meet or exceed models to be developed by the New York State Division of Human Rights and New York State Department of Labor. Employers will be required to conduct trainings on an annual basis for all employees, including managers and supervisors.

New York City – Stop Sexual Harassment in New York City Act 

Effective immediately, the NYCHRL, which governs harassment in the workplace, will apply to all employers, regardless of size.

Effective immediately, the statute of limitations for filing claims of sexual harassment with the New York City Commission of Human Rights under the NYCHRL is extended from one year to three years.

Effective September 6, 2018, all employers must conspicuously post an anti-sexual harassment rights and responsibilities poster and provide their employees an information sheet to be created by the New York City Commission on Human Rights.

Effective April 1, 2019, employers with 15 or more employees (including interns) need to provide annual interactive sexual harassment training. The training must define and provide examples of sexual harassment and hit upon the topics of bystander intervention and the complaint process. Toward that end, the New York City Commission on Human Rights will develop online sexual harassment training modules for use by employers. Employers will be required to provide training to a new employee after 90 days of employment (unless the individual already received the required training at another employment within that training cycle), and records of training must be maintained for at least three years, including signed employee acknowledgments.

The Takeaway

Employers, the time to act is now. Review and, if necessary, revise your existing policies, employment contracts, severance agreements and other contracts to ensure compliance with these new state and city laws. And if you don’t have anti-harassment policies and a training program in place, develop and implement them immediately. In so doing, it’s recommended that you not blindly adopt the state and/or city’s model policies or training programs. Understand that these are designed to provide a minimum threshold that should adjusted and built upon based on the needs of your company.

All that being said, even if your existing harassment policies comply with the new laws, best practice suggests you redistribute them. Work with your human resources professionals and employment lawyers to safeguard your company and ensure compliance with these new laws. #YouToo

This blog post is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.