The Stop Sexual Harassment in NYC Act was enacted by the New York City Counsel in May 2018 with the goal of protecting the city’s workers from sexual harassment. This new local ordinance extends to employers with fewer than five employees and is an amendment to the New York City Human Rights Law and the New York City Charter. City employees can now report sexual harassment up to three years after an incident occurs, tripling the previous statute of limitations for such claims.
Beginning on September 6, 2018, all employers within the city will be required to post a formal notice and provide all new employees with a fact sheet. Both the notice and the fact sheet will be provided by the New York City Commission on Human Rights. These documents outline the definitions of sexual harassment and provide details on how employees can report incidents or access more information.
Looking to the future, employers should be aware that this new local ordinance will impose additional requirements as time passes. Annual sexual harassment training will be required for all employees working in New York City for employers with 15 or more employees (including interns) beginning on April 1, 2019.
The annual training must be interactive but need not be live or conducted in-person. The annual training must provide employees with the definition of sexual harassment and examples of harassing conduct. The annual training must also educate coworkers on methods of bystander intervention and provide employees with an explanation of all methods of filing a complaint within the organization and under local, state, and federal law. Finally, employers will be required to obtain a signed acknowledgment from each employee that the annual training has been attended by that employee.
Separately, the recently signed New York State budget also addresses sexual harassment in both the private and government workplace. Employers in New York City should be aware that they must comply with the requirements at the local, state, and federal level.
New York State is implementing additional sexual harassment training requirements for all employers beginning on October 9, 2018. This training must provide an explanation and examples of sexual harassment. Additionally, training will provide employees with information on state and federal sexual harassment laws, remedies, and methods of adjudicating complaints. Employees must also be informed of methods to address harassing conduct by supervisors as well as the responsibilities that supervisors have once an incident has been reported.
Under this new state law, employees must enforce a written anti-sexual-harassment policy that uses a standard complaint form which ensures a timely, confidential investigation that provides due process for all parties involved. Employers will be able to access a model policy and form provided by the State Division of Human Rights.
This model will give examples of prohibited sexual harassing conduct as well as information on state and federal sexual harassment laws and remedies. This model policy will also apprise employees of the available methods of addressing instances of sexual harassment while also prohibiting retaliation against employees who provide complaints.
The new budget also includes a prohibition against using non-disclosure agreements in sexual harassment settlements unless the complainant prefers confidentiality, a prohibition against using mandatory arbitration clauses for workplace sexual harassment claims, and protections for certain non-employees like contractors and subcontractors.
What This Means for Employment Defense Lawyers
New York City employment defense lawyers will be busy advising employers about the New York City law, with overlaps with New York State requirements. Training programs will need to be created, implemented, and tracked starting fairly quickly.
Employment defense firms outside of New York may want to use this new law as a cautionary tale of regulations that may be yet to come in jurisdictions near them. Employers should be informed of this trend, and proactive training programs considered.
EPLI panel members for employment practices liability insurance will want to maintain efforts to stay abreast of these rapidly changing employment laws.
For all employment defense law firms, this is yet another good topic to use in a blog post, client alert, social media marketing campaign (especially on LinkedIn for the defense), or continuing education program.
It is always good to remember that new business with employers sometimes goes to the law firm with the best marketing, not the best lawyers.
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