THE NEW YORK CITY COUNCIL AND NEW YORK STATE LEGISLATURE PASS NEW LEGISLATION TO TARGET GENDER DISCRIMINATION AND SEXUAL HARASSMENT IN THE WORKPLACE
The #Metoo movement has spurred additional protections to be implemented by the legislatures of New York City—and New York State relating to gender discrimination and sexual harassment.
New York City
On April 11, 2018, the New York City Council passed key legislation pertaining to sexual harassment, which Mayor Bill de Blasio is expected to sign into law in the coming weeks.
Employers of all sizes are bound by the New York City Human Rights Law with respect to sexual harassment claims
Previously, employers with four or more employees could be liable for sexual harassment under the New York City Human Rights Law (City HRL).
Now, employers of all sizes can be held liable for sexual harassment under the City HRL.
Mandatory Sexual Harassment Training
Within 90 days of hiring an employee, employers must provide interactive anti-harassment training, which includes information about the prohibition against retaliation. New York City will create and provide a complimentary online training program that employers may use if they wish. Employers must maintain records of training, including signed employee acknowledgments, which must be maintained for three years.
The mandatory sexual harassment training requirement is supposed take effect on September 1, 2018.
Extended Statute of Limitations
Employees will now have three years to file a claim of “gender-based harassment” with the New York City Commission on Human Rights, under the City HRL. Previously, the statute of limitations to file a claim with the New York City Commission on Human Rights, was a year from the date of the alleged conduct.
Required Handout and Poster
New York City employers will be required to post an “anti-sexual harassment rights and responsibilities” poster in both English and Spanish in a workplace common area. The city will issue an approved poster that employers can post.
Employers will also be required to issue an information sheet to all new hires.
Alternatively, an employer can comply with the City HRL through their handbooks issued to all employees.
New York State
Mandatory Sexual Harassment Training and Policy
Starting October 9, 2018, the New York State Labor Law will require that all New York employers, regardless of their size, provide sexual harassment training every year to all employees and provide them with a written non-harassment policy.
The New York State Department of Labor is charged with developing a model non-harassment policy as well as a model training program, in consultation with the New York State Division of Human Rights, though there is no stated timetable for the publication of these model documents.
Employers may either adopt the state’s forthcoming model policy, once available, or, revise their own policies to meet the specified threshold requirements of the New York State Labor Law.
Protections for Non-Employees
As of April 12, 2018, the New York State Human Rights Law has new protections for non-employees, providing that an employer may be liable for sexual harassment of contractors, subcontractors, vendors and consultants where the employer knows or should know that harassment is occurring in its workplace and fails to take immediate and appropriate corrective action to stop unlawful conduct.
Arbitration Clauses will have carveouts
Starting July 11, 2018, arbitration clauses will not apply to sexual harassment claims. Specifically, the state bill prohibits “any clause or provision in any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.”
This measure seeks to enable employees to pursue private actions related to sexual harassment, as it both applies to future contracts and purports to declare existing arbitration clauses “null and void,” except where there is a conflict with a collective bargaining agreement or an inconsistency with federal law, i.e. to the extent that it is found to be pre-empted by the Federal Arbitration Act (FAA).
The FAA generally applies to arbitration contracts involving interstate commerce unless the parties have agreed otherwise.
Pre-emption is not self-enforcing. Usually, the party seeking to arbitrate (most often employer) is required to make a motion to compel arbitration on the basis of preemption.
Settlements of sexual harassment claims often include non-disclosure or confidentiality clauses limiting disclosure of the terms of the agreement, and in certain cases even the fact of the agreement.
The new state budget legislation prohibits non-disclosure agreements (NDAs) within any written settlement agreement of a sexual harassment claim unless it is the expressed preference of the employee.
In order to demonstrate this preference, the employee must be provided with a non-waivable 21-day waiting period as well as a seven-day revocation period. After the 21 days have passed, the employee must specifically affirm a preference for confidentiality.
This section will take effect on July 11, 2018.