New York’s New Rules on Sexual Harassment Prevention:
5 Things Employers Need to Know

 

Effective October 9, 2018, New York State’s new rules regarding sexual harassment training and prevention in the workplace will take effect. Every organization in New York—regardless of company size—will be required to facilitate yearly sexual harassment training and to create a clear sexual harassment prevention policy. All types of workers, including interns, part-time employees, and management, will be required to participate.

As an employer, an employee, or an entrepreneur who is considering going into business of any kind, the requirements included in the updated legislation are important to understand in order to maintain a safe, harassment-free workplace. Importantly, a company must swear under penalty of perjury that they have implemented this process prior to being able to bid on any state work.

1. The Policy Must Comply With New York State Standards

New York’s updated guidelines require a clear, specific prevention policy that must include, at the very least, the following:

  1. An explicit prohibition of harassment that includes specific examples;
  2. Detailed information regarding state, federal, and relevant local laws dealing with sexual harassment and the legal remedies for victims;
  3. A form complaint available to all employees;
  4. Detailed procedures for timely filing and investigation of complaints;
  5. A statement clearly identifying that sexual harassment is an unacceptable form of employee misconduct and that any sanctions will be enforced against those engaging in harassment and against supervisors who have knowledge of the occurrence or allegations of harassment;
  6. A statement that it is against the law to retaliate against anyone who reports sexual harassment or anyone who testifies or assists in relation to a complaint.

Violations of this provision could be subject to fines up to five-hundred dollars and imprisonment for up to sixty days, in addition to any damages related to discrimination or harassment claims brought by the victim.

2. There Must Be a Standardized Yearly Training

 

Each and every employee in New York State must complete a sexual harassment prevention training program by January 1, 2019, which must be repeated on a yearly basis. The training must address the relevant nuances of the particular work environment, a description of an anonymous internal process by which employees can report harassment safely, and language accommodations for non-English speakers.

Additionally, all new employees must complete training within the first month of their employment start date. The training must be interactive, it must include explanations and definitions of sexual harassment that are consistent with the Department of Labor’s definition, it must include specific examples of sexual harassment, it must include explanations of the federal and state remedies available for victims, and it must include a specific section that addresses conduct by supervisors.

These new laws seek to protect victims, but also to promote management accountability. Violations of this provision could also be subject to fines up to five-hundred dollars and imprisonment for up to sixty days, in addition to any damages related to discrimination or harassment claims brought by victims.

3. Non-employees Can Now Be the Victims of Workplace Harassment and Discrimination

As of April 12, 2018, the New York State Human Rights Law now protects non-employees from discrimination and harassment. This means that if you hire contractors, vendors, consultants, or anyone providing services to you, you as the employer can be liable for sexual harassment or discrimination under the New York Human Rights Law. Your company’s training curriculum must explain to your employees and supervisors that proper conduct in the workplace must be extended to interns, contractors, vendors, or anyone else providing services in the workplace—not just to their employee peers, associates, or subordinates.

4. Employers Can No Longer Force Arbitration or Non-disclosure of Claims Under the Human Rights Law

As of July 11, 2018, an employer can no longer enforce mandatory arbitration of sexual harassment claims, nor can settlement agreements relating to such claims contain non-disclosure provisions. This retroactively applies to agreements that were in place before this law was enacted “except where inconsistent with Federal law”.

So, when drafting your employment contracts, if you are including an arbitration clause, be sure to clarify that it does not apply to discrimination or harassment claims, and that the victim is not precluded from discussing their experience.

5. For Companies in New York City, the Guidelines Differ

For those engaging in business in New York City, there are additional guidelines contained in the “Stop Sexual Harassment in NYC Act”, including bystander intervention training and a detailed description of the complaint process available through the NYC Commission on Human Rights.

Additionally, employers must keep signed acknowledgments from all employees that prove they have attended training for the past three years. While this retention policy is not a requirement elsewhere in New York, it is highly recommended for the purposes of avoiding penalties if an employee alleges that training was improper or did not take place.

New York City’s guidelines do not go into effect until April 1, 2019 and employers have until April 1, 2020 to have all employees trained and a policy in place.

Summary

Obligations relating to sexual harassment have changed significantly over this past year, and will continue to change as various new laws come into effect. New York seeks to be at the forefront of a new movement of improved sexual harassment prevention and accountability for those who should be responsible.

As such, it is vital that you be familiar with these changing laws and what it means for your business, your employees, and you. The attorneys at our office are available to provide help in understanding these changing laws, implementing new guidelines, and facilitating your company’s required employee training.

This article is intended for general informational purposes only and should not be considered legal advice or counsel, nor does it create an attorney-client relationship.

Vivek Thiagarajan is an attorney who focuses his practice on litigation, corporate and not-for-profit law. Vivek represents both plaintiffs and defendants in actions involving contractual breaches, including nonpayment and employment issues, landlord tenant disputes, premises liability, qui tam investigations, and personal injury matters. Vivek can be reached at vivek@morgdevo.com or (585) 672-5500.