New York City Requirements
The New York City Commission on Human Rights (the “Commission”) recently issued a notice and information sheet that all New York City employers are required to post and provide to new employees by September 6, 2018.
As previously blogged, on May 9, 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act (the “Act”) in an effort to combat and prevent sexual harassment in the workplace. The Act applies to all New York City employers (regardless of size) with regard to discrimination claims arising out of gender-based harassment. Several significant components of the Act include:
- Beginning April 1, 2019, employers with 15 or more employees in New York City must conduct annual sexual harassment training for all employees and within 90 days of an employee’s hire;
- Extending the statute of limitations for filing complaints of gender-based harassment with the Commission from 1 year to 3 years; and
- Requiring all employers to post an anti-sexual harassment rights and responsibilities notice and also to distribute an information sheet to new employees on sexual harassment.
With regard to the new training requirement, the Commission will create an online module that employers may use at no charge to comply with the Act. It is unclear when this module will be ready.
Pursuant to the above, the Commission issued the mandatory posting notice, which all employers must conspicuously display. The Act requires employers to display the notice in both English and Spanish, but only the English version of the notice has been published by the Commission. The Spanish version of the notice is forthcoming.
Further, the Commission released the informational fact sheet that must be distributed to employees at the time of hire. To comply with this requirement, employers may either provide this information sheet to new employees as a separate document or incorporate it into an employee handbook.
In light of the above, New York City employers should ensure to post the notice and also be prepared to distribute the fact sheet to all new hires before the September 6, 2018 deadline. Employers should also be prepared to implement an anti-sexual harassment training program by April 1, 2019.
New York State Law
Finally, all New York employers should also keep in mind the new legal obligations arising from the New York State Budget. Last April, Governor Andrew Cuomo signed into law the New York State Budget containing several bills designed to prevent sexual harassment in the workplace. To date, New York employers are now prohibited from using nondisclosure clauses relating to claims of sexual harassment in settlements or other agreements (unless the plaintiff/complainant prefers to include such a provision) and may not require employees to submit sexual harassment claims to mandatory arbitration. Notably, all New York employers must adopt a written anti-sexual harassment policy by October 9, 2018. On that same date, employers must also begin conducting annual interactive sexual harassment training.
The New York Department of Labor and Division of Human Rights will issue a model sexual harassment prevention policy and model sexual harassment prevention training program that employers may choose to adopt. Alternatively, employers can create their own policy and training program, which must equal or exceed the State’s requirements. At a minimum, the policy must: (1) prohibit sexual harassment and provide examples of prohibited conduct; (2) provide that sexual harassment is a form of employee misconduct and individuals engaging in sexual harassment and supervisory personnel who knowingly allow such behavior will be disciplined; (3) include information regarding federal and state laws on sexual harassment and remedies available to victims; (4) include a model complaint form; and (5) inform employees of forums where disputes can be adjudicated and the available remedies. The sexual harassment training must, at the very least, cover: (1) an explanation of sexual harassment and examples of prohibited conduct; (2) federal and state laws regarding sexual harassment and the remedies available to victims; (3) supervisor conduct and their added responsibilities; and (4) employees’ rights and the various forums available for adjudicating complaints.
Employers should consult with counsel regarding the new employer obligations under the Act and the New York State Budget to ensure compliance with both laws. Now more than ever, it is imperative for employers to have comprehensive written anti-sexual harassment policies and robust training programs.