Over the past several weeks, New York has gotten serious in its attempt to end sexual harassment. Earlier this month, Mayor Bill de Blasio signed the “Stop Sexual Harassment in NYC Act” (“New York City Act” or “Act”) into law, bringing about sweeping changes that will affect all New York City employers.
- Specifically and effective immediately, the New York City Human Rights Law (“NYCHRL”) will consider sexual harassment to be a distinct form of discrimination, and will cover all employers, regardless of the number of employees, with respect to claims of sexual harassment. Further, the Act increases the statute of limitations for gender-based harassment to three years. Previously, the NYCHRL only applied to employers with four or more employees and had a statute of limitations for gender-based harassment of only one year.
- Effective September 6, 2018, all New York City employers will be required to display a new anti-sexual harassment poster in a conspicuous location, which will be created by the NYC Commission on Human Rights. The poster will define sexual harassment and how to report it. It must be displayed in both English and Spanish.
- On April 1, 2019, New York City employers with 15 or more employees will be required to conduct annual sexual harassment trainings. These trainings must be “interactive” and explain what sexual harassment is, along with the process of reporting complaints internally and to the respective federal, state and city administrative agencies. Employers must keep records verifying that employees have completed the training.
The Act was enacted on the heels of New York State-wide legislation signed into law by Governor Andrew Cuomo in April. Some of the highlights of the new State-wide laws include:
- Effective immediately, the New York State Executive law is amended to impose liability upon all employers for gender-based harassment experienced by non-employees, such as contractors, vendors, or consultants.
- Effective July 11, 2018, New York employers are prohibited from including a non-disclosure agreement in any settlement of a sexual harassment claim unless the complainant specifically requests confidentiality.
- Effective July 11, 2018, New York employers are prohibited from including mandatory arbitration provisions for allegations or claims of sexual harassment “except where inconsistent with federal law.”
- Effective October 9, 2018, all New York employers must either adopt or create a policy that equals or exceeds the model policy and training program which will be developed by the New York Department of Labor in collaboration with the Division of Human Rights.
In light of these new laws, New York employers should: (a) review and revise as necessary their sexual harassment training policies and practices to ensure compliance with City and State laws; (b) as soon as the anti-sexual harassment posters become available, New York City employers should be prepared to post the posters in a conspicuous setting in the workplace; (c) review their standard settlement agreements to make sure that they are in compliance with New York’s new laws on the prohibition of non-disclosure agreements in harassment-based settlements; and (d) assess any mandatory arbitration provisions in their contracts or policies to comply with these new laws. This aspect of the law will likely be challenged in court and could take several years before a final conclusion is reached, but companies would be wise to consider the potential impact that the law has on pre-existing and future agreements.
The Labor and Employment Team at Hogan Lovells has extensive experience providing interactive anti-harassment training, developing anti-harassment policies and complaint procedures, and guiding companies on the best practices for complying with Federal and State labor and employment laws.