Sexual Harassment Prevention, Accusation Compliance Changes Required for N.Y. Employers

HIGHLIGHTS:

• New York employers must prepare to provide required sexual harassment training to employees.
• Employers in New York must review and revise written employment policies to comply with heightened requirements.
• New York employers also should review for compliance any employment agreements and settlement agreements related to sexual harassment allegations.

In an extension of the recent attention that policymakers have given to issues of workplace harassment, New York State and New York City each recently passed a collection of laws addressing sexual harassment prevention and allegations for employers. New York employers must be mindful of these changing requirements, which will require updated policies and form agreements as early as July 11, 2018.

New York State Legislation

Employment and Settlement Agreements

The New York Civil Practice Laws and Rules (CPLR) added a new Section 7515, which prohibits employers from including any mandatory arbitration clause that would bypass judicial resolution for allegations of unlawful sexual harassment by requiring such claims to be heard in arbitration. This requirement applies to contracts entered into on or after July 11, 2018, and includes a carve-out for collective bargaining agreements. The new CPLR 7515(b)(1) notes that the prohibition on mandatory arbitration clauses for sexual harassment claims will not apply "where inconsistent with federal law," presumably acknowledging that the restriction may be pre-empted by the Federal Arbitration Act (FAA). The Supreme Court has held, including in its recent Epic Systems Corp. v. Lewis decision, that the FAA requires the enforcement of arbitration agreements according to their terms.

Also effective July 11, 2018, a new CPLR Section 5003-b is added that prohibits employers from requiring non-disclosure provisions to settle sexual harassment claims, unless 1) confidentiality is the complainant's preference, as memorialized in the agreement; 2) the complainant has 21 days to consider any nondisclosure term; and 3) the complainant has seven days after signing the agreement in which to revoke the agreement. CPLR 5003-b does not prohibit confidentiality clauses concerning the terms of the agreement, such as the amount of money paid to settle the claims, but applies to disclosure "of the underlying facts and circumstances to the claim or action."

Anti-Sexual Harassment Policies and Training

Effective Oct. 9, 2018, New York employers will have to circulate to all employees a written sexual harassment prevention policy. The New York State Department of Labor (NYSDOL) and New York State Division of Human Rights (NYSDHR) will develop a model sexual harassment prevention policy. Employers may either adopt the model policy or create their own policy that meets or exceeds the model's minimum standards. While the model has not yet been created, the new legislation has identified the following required components:

• a statement prohibiting sexual harassment
• examples of prohibited conduct that would constitute unlawful sexual harassment
• information on the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment, in addition to a statement that there may be additional applicable local laws (e.g., New York City)
• a standard complaint form
• a procedure for the timely and confidential investigation of complaints that ensures due process
• a statement informing employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
• a statement that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment as well as against supervisory and managerial personnel who knowingly allow such behavior to continue
• a statement that it is unlawful to retaliate against individuals who report sexual harassment or those who testify or assist in any proceeding

Although many employers already have in place sexual harassment prevention policies, many New York employers will, at minimum, need to revise their policies to include a standard complaint form and a listing of the available forums to adjudicate complaints (e.g., NYSDHR, U.S. Equal Employment Opportunity Commission (EEOC), New York state courts).

Also effective Oct. 9, 2018, New York employers will need to provide annual sexual harassment prevention training to all employees. As with the policies, the NYSDHR and the NYSDOL will develop a model training program. Employers may present either the state model or their own model that meets the state's standard. The training must be "interactive" and include the following components:

• an explanation of sexual harassment
• examples of conduct that would constitute unlawful sexual harassment
• information on the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment
• information concerning employees' rights of redress and all available forums for adjudicating complaints
• additional responsibility for conduct by supervisors

Expansion of Sexual Harassment Protections

The New York State Human Rights Law has been amended to provide for claims of sexual harassment by nonemployees, including contractors, subcontractors, vendors, consultants or other individuals providing workplace services under a contract.

New York City Legislation

Mayor Bill de Blasio signed a package of laws called the Stop Sexual Harassment in NYC Act (the NYC Act) on May 9, 2018, one month after the passage of the New York State legislation described above.

Like the New York State requirement, the NYC Act requires training. Private employers in New York City with at least 15 employees must conduct annual "interactive" anti-sexual harassment training for interns and employees, beginning April 1, 2019. Any new employee who has not received training within the past year at another employer must be trained within the first 90 days of employment. The New York City Commission on Human Rights (NYCCHR) will create a series of online interactive training modules that employers may use. Employers will be required to keep records of training – including signed employee acknowledgements – for three years. The list of topics that the trainings must cover is more robust than the state's, including:

• a statement concerning the prohibition on retaliation and examples of retaliation
• information concerning bystander intervention
• the specific responsibilities of supervisors and managers to prevent and respond to sexual harassment and retaliation

New Anti-Harassment Poster

The NYCCHR will design a new anti-sexual harassment rights poster that employers will be required to display conspicuously in the workplace and an information sheet that employers will have to distribute to new employees upon hire beginning on Sept. 6, 2018.

Expansion of Statute of Limitations

Employees will now have three years (up from one year) to file a claim of gender-based harassment under the New York City Human Rights Law.

Takeaways for Employers

New York employers should consult with legal counsel to review their anti-harassment policies, training programs and practices. Employers also should take the time now to review and revise how they respond to complaints of unlawful harassment in the workplace. Where allegations of sexual harassment are made, employers should be careful that their methods of attempting to resolve such disputes take into account the new legal standards, requirements and restrictions.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.