New York State and City Raise Bar for Employers in Handling Sexual Harassment Allegations
Both New York State and New York City have recently passed a series of laws that significantly increased the protections against sexual harassment in the workplace. These laws outline additional and specific requirements that employers must comply with over the next year.
New Sexual Harassment Policy and Training Requirements for All Employers
All employers in New York State are required to adopt anti-sexual harassment policies and institute training programs that meet or exceed specified legislative requirements by October 9, 2018. The adopted policy must include examples of prohibited conduct, a complaint form, investigation procedures, and other model guidelines (View model policies here). As stated in the model training materials published on October 1, 2018, sexual harassment training must be completed before October 9, 2019.
Expanded Liability for Sexual Harassment
Another change is that employers may now be held liable for sexual harassment of independent contractors and other non-employees on an employer’s New York premises. Under these circumstances, employers should revise their sexual harassment policies and procedures to reflect this broader scope of coverage and may want to include non-employees in anti-sexual harassment training programs. New York State employers may also want to review any relevant insurance policies to ensure adequate coverage over sexual harassment suffered by non-employees on their New York premises.
Exclusion of Sexual Harassment Claims from Pre-Dispute Arbitration Agreements
The law also bars pre-dispute arbitration agreements from covering sexual harassment claims. Noncompliant arbitration clauses or provisions entered into before July 11, 2018, remain enforceable on non-sexual harassment claims, but those entered into after July 11, 2018, are void and unenforceable on all claims. There is a strong possibility that this change may be preempted by the Federal Arbitration Act, which restricts states from adopting laws that disfavor the enforcement of arbitration provisions involving interstate commerce. However, until this issue has been resolved by a court, employers wishing to avoid litigation over the enforceability of their agreements should include carve-outs excluding sexual harassment claims from their pre-dispute arbitration agreements.
Limitations on Confidentiality and Non-Disclosure Language in Agreements Involving Sexual Harassment Claims
The inclusion of confidentiality or non-disclosure provisions in an agreement related to sexual harassment allegations is now prohibited unless the complainant(s) expressly authorize the provision in the written agreement and are given a 21-day consideration period and a 7-day revocation period. Unlike similar provisions required by the Age Discrimination in Employment Act, the 21-day consideration period is not waivable. Notably, this change will have a significant impact on separation agreements with New York State employees that include confidentiality provisions, since they have to comply with the 21-day consideration and 7-day revocation periods.
New York City has implemented similar requirements under the Stop Sexual Harassment in New York City Act. Effective April 1, 2019, the law extends the statute of limitations for filing gender-based harassment claims arising under the New York City Human Rights Law from one year to three years, and covers all employers regardless of size with respect to claims of gender-based harassment. Additional mandatory requirements for New York City employers include:
To conduct annual anti-sexual harassment training
To post anti-sexual harassment rights and responsibilities poster in the workplace
To provide an anti-sexual harassment fact sheet to new hires
Placing the poster and distributing fact sheets to new hires went into effect on September 6, 2018. Beginning April 1, 2019, New York City employers with 15 or more employees – including interns – must conduct annual anti-sexual harassment training for all employees, including supervisory and managerial employees. The training must be interactive, although it does not have to be live or conducted by an in-person instructor.