New York State and NYC Sexual Harassment Laws:  How Employers Need to Respond

New York State and New York City have both introduced comprehensive legislation in a robust effort to prevent sexual harassment at work. The proposed laws were crafted in response to the national #MeToo social movement and the growing number of sexual harassment complaints that are being raised on a daily basis in the United States. New York will become only the 4th State (behind Connecticut, Maine and California) to require harassment prevention training by employers.

Stop Sexual Harassment in NYC Act

The New York City law, entitled quite simply, Stop Sexual Harassment in NYC Act, requires City employers with 15 or more employees (including interns) to provide annual anti-sexual harassment training for all employees, supervisors, and mangers. Certain new employees must be trained within 90 days of hire, unless they received such training by a previous employer within the required time frame. They must also be provided with a written copy of the company’s policy. All training attendees must sign an attendance acknowledgement. In addition, a uniform facts sheet must be given to new employees and a new poster of rights and responsibilities has been crafted that must be displayed as of September 6, 2018. The majority of the requirements of this Act, which seek to end “gender-based harassment, go into effect on April 1, 2019, if signed into law.

Under the new Act, training in NYC has specific requirements and topics that must be included in same, such as definitions and examples of sexual harassment, bystander requirements, and guidance for filing a variety of types of complaints. Additionally, said training must be “interactive” but not live. It also extends the statute of limitations for filing certain claims to three years.

New York State’s Sexual Harassment Law

The New York State’s new law also is quite sweeping in its requirements. Said law requires that all employers craft an anti-harassment policy that applies to everyone conducting business with NY employers. It mandates that all managers must report harassment, and that the company has 30 days to conduct a proper investigation and includes what the investigation should look like. The legislation also sets forth the various modes of external complaints available to victims. The State agency provides a model Complaint form, a variety of training documents, and guidance for employers. It should be noted that in NY, mandatory arbitration clauses are non-compliant, and non-disclosure provisions are now only permitted in very limited circumstances.

The State Law’s Draft Guidance

At the end of August, New York State posted “draft” policies, documents, and guidance on the new law which can be commented on by the public until September 12, 2018. Some significant developments in the draft clarify that if signed, all employees and managers must be trained between October 9, 2018 and January 1, 2019. Thereafter, training is required annually. All NY employers must have updated anti-harassment policies in place by October 9, 2018. In addition, the draft states that new employees have 30 days to be trained on this topic upon hire.

Finally, the draft seeks to define  “interactive” training, which means that some form of employee participation is required and the training may: (i) be web-based with questions asked of employees as part of the program; (ii) accommodate questions asked by employees; (iii) include a live trainer made available during the session to answer questions; and/or (iv) require feedback from employees about the training and materials presented.

Lastly, at the end of August 2018, NYC Commission on Human rights provided that all employers must prominently display a uniform notice of employee rights poster, in English and Spanish, and provide all new employees with a relevant fact sheet by September 6, 2018.

So what should NY employers do?

*Review current policies, practices, procedures and training programs

*Confirm that your policies and procedures are clear and easy to follow (ie – “user friendly”) and revise as needed

*Ensure your HR professionals and managers understand the new legal requirements

*Make sure your training, policies and procedures comply with the legal requirements of all the new legislation and meet the minimum standards provided in the new laws

*Comply with both City and State requirements if you are an employer in NYC

*Train new employees and existing employees within the required time frame

*Provide new NYC employees with the required fact sheet beginning September 6, 2018

*Review all employment agreements and separation agreements for compliance with laws on nondisclosure clauses and mandatory arbitration requirements

*Monitor the State and City web sites for model policies in draft and final forms, including New York’s new webpage: Combating Sexual Harassment at Workplace

*Craft policies that are relevant to your specific organizations

*Create a culture where “speaking up” is acceptable and encouraged

*Take all complaints seriously

*Comment on the draft policies and procedures by September 12, 2018.

*Display the required rights and responsibilities poster, in both English and Spanish, in NYC by September 6, 2018

For assistance with any of the above, including “interactive” training, please contact Nicole Croddick.

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Nicole Sorokolit Croddick is Counsel at Davison, Eastman, Muñoz, Lederman & Paone, P.A., where she focuses her practice on employment and labor matters. She consults companies on human resources issues and has conducted internal investigations on ethical and legal violations. She also conducts anit-harassment and other compliance trainings. Contact Nicole Croddick.