New York State and New York City have placed employers on the front line of the #MeToo movement, with legislation that broadens the scope of protection against both sexual harassment and sexual discrimination, as well as placing additional obligations on employers to combat sexual harassment.
New York State
In April 2018, the New York State legislature enacted changes to the Civil Practice Law and Rules and the State Human Rights Law. These amendments broaden the reach of laws prohibiting sexual harassment and place specific obligations on employers.
The new law follows amendments made in 2015, which allowed for claims of sexual harassment to be made against employers of any size (all other claims of harassment and discrimination may only be brought against employers with four (4) or more employees. The new legislation now explicitly imposes liability on employers who permit sexual harassment against non-employees (e.g. contractors, vendors).
Arguably, the two most important changes within the legislation relate specifically to contractual issues, and became effective on July 11. The customary inclusion of a confidentiality provision in any agreement that resolves a sexual harassment claim can no longer be taken for granted. Now, a confidentiality provision is permitted only if it is the individual claimant’s preference. And borrowing a page from the federal age discrimination law, individuals must now be afforded a twenty-one (21) day period to consider any agreement that includes a confidentiality clause, and a seven (7) day period to revoke the agreement after signing it.
The second contractual change involves arbitration agreements. The new law prohibits employers from requiring employees to agree to mandatory arbitration of a sexual harassment claim. The vitality of this provision is in doubt, however, in light of the Federal Arbitration Act, and the endorsement the FAA recently received in the United States Supreme Court’s decision in Epic Systems Corp. v. Lewis.
Employers have just a few months to gear up for compliance with another important provision of the law. As of October 9, 2018, employers will be required to adopt and implement written anti-harassment policies that follow specific guidelines, and provide annual, interactive sexual harassment training to all employees. While training has become commonplace in many businesses, it is now mandatory on an annual basis. In New York State, the training must define sexual harassment, provide examples, explain the federal, state and local laws that prohibit such harassment, and provide detailed information regarding the many government agencies charged with investigating and seeking remedies for violations of the law.
New York City
In New York City, the City Council passed the “Stop Sexual Harassment Act” on May 9, 2018. In line now with New York State law, the City law applies the prohibition against sexual harassment to all employers regardless of size, and extends the limitations period for filing a claim with the City Commission on Human Rights to three years. As of September 6, 2018, all employers will be required to post a sexual harassment rights and responsibilities notice in a conspicuous place and provide an information sheet to all employees, using forms prepared by the NYC Commission on Human Rights.
Like the State law, employers with fifteen (15) or more employees are now required to provide annual, interactive training to all employees, which defines harassment and provides examples. The training requirement differs, however, insofar as NYC employers are now also required to address the importance of bystander intervention to curb workplace harassment, and the internal complaint process. All new employees must be trained within ninety (90) days of their start (unless the required training was received at another employer within the training cycle). This training provision goes into effect on April 1, 2019, and the Commission has publicly stated that it will provide on-line modules for use by employers.
Tips and Takeaways
What does all this mean? There are straightforward answers to some questions, but others remain open. The time is now for employers to begin reviewing their policies and procedures and to make the necessary revisions in an effort to comply with the law. The same holds true, perhaps more so, for settlement agreements and severance agreements involving sexual harassment claims, as changes are needed to insure the right steps are taken to address confidentiality. Employers must also be mindful of the fact that now all employees must be trained, and the laws impose certain subject-matter requirements. Employers no longer have the freedom to train managers and supervisors only, or just staff, as many have done as a matter of course in the past.
On the other hand, a number of questions still remain open. For example: Do these new laws apply to all severance or separation agreements that merely include sexual harassment as a released claim, without any underlying claim. Probably not, but only time will tell. Do the new laws require that training be identical for all employees? The answer here is also probably not, as it makes more practical sense to train managers and supervisors in the specifics of their unique obligations. Insight on this question may be provided, at least in New York City, by the training modules published by the Commission. What is also unclear is what “interactive training” actually means. Does this require “live” training by a lawyer or certified trainer? The City’s reference to providing online modules suggest that “interactive” does not mean “in person” or “live,” but the answer will not be known with certainty until the City Commission speaks.
Suffice to say, employment lawyers and Human Resource professionals who anticipated a lazy, hazy summer have their work cut out for them to insure compliance with the laws now, and as new requirements become effective, or gain more clarity, in the future.
If you have any questions about this topic or any other labor and employment matter, please contact Offit Kurman here.
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