Although the #MeToo movement found its roots in the entertainment industry, you would be hard pressed to name an industry that has not seen a prominent figure fall from grace in the past eight months. Most employers have long understood that they must confront the issue of sexual harassment in the workplace, but the question is how to properly do so in a manner consistent with the myriad federal, state and local laws which govern this area, and with an ever-changing paradigm.
In April 2018, New York State entered the fray by enacting the most comprehensive state anti-sexual harassment legislation to date. On May 9, 2018, New York City swiftly followed by enacting its own anti-sexual harassment statute that mirrors many provisions of the state law.
Although not all of the changes enacted by these laws take effect immediately, New York-based employers should be aware of the numerous new requirements, including:
- Expanded protections for non-employees, and employees of small employers: Effective immediately, protections against sexual harassment under the New York State Human Rights Law (NYSHRL) have been expanded to cover non-employees, including contractors, subcontractors, vendors, consultants, and other persons providing services pursuant to a contract. Likewise, regulations prohibiting sexual harassment in the workplace under the New York City Human Rights Law (NYCHRL) have expanded, effective immediately, to cover all New York City employers, regardless of the number of employees.This change aligns the NYCHRL with the NYSHRL's coverage of sexual harassment claims, which also covers all employers.
Furthermore, the statute of limitations period for commencing a civil action in court under either the NYSHRL or NYCHRL is three years. However, an employee also has the option of filing a claim with an appropriate administrative agency, such as the New York State Division of Human Rights (NYSDHR) or the New York City Commission on Human Rights (NYCCHR). Under the recent amendments, the statute of limitations period for filing sexual harassment claims under the NYCHRL with the NYCCHR has been expanded from one year to three years, but the limitations period for filing sexual harassment claims under the NYSHRL with the NYSDHR remains one year.
- Restrictions on the use of nondisclosure provisions: Effective July 11, 2018, New York will prohibit nondisclosure (confidentiality) provisions in agreements settling claims of sexual harassment, unless it is the "complainant's preference" that a nondisclosure provision be included. To demonstrate such a "preference," the complainant must be given 21 days to consider a nondisclosure provision, if one is proposed, and seven days to revoke an agreement which contains a non-disclosure provision after the agreement is executed. Most employers will find this process familiar, as these review and revocation periods are already required under federal law to obtain a valid release of age discrimination claims.
Accordingly, any nondisclosure provision included in an agreement settling claims of sexual harassment executed after July 11, 2018 will be unenforceable unless agreed to by complainant in accordance with the new regulations. We expect that the trend towards more transparency with respect to the settlement of sexual harassment claims will continue. In this regard, readers may also recall this DLA Piper Employment Alert, which addressed a notable provision included in the Federal Tax Cuts and Jobs Act of 2017 that disallows corporate tax deductions for any settlement, payout or attorneys' fees related to sexual harassment or sexual abuse if such payments are subject to a nondisclosure agreement.
- Prohibition on mandatory arbitration provisions: Also effective July 11, 2018 (with the exception of arbitration provisions included within collective bargaining agreements), New York law will prohibit employers from requiring individuals to arbitrate claims of sexual harassment. Notably, however, the impact of this new prohibition on arbitration may be short lived because it will not apply to the extent inconsistent with federal law, and federal law, which is codified in the Federal Arbitration Act (FAA) and applies to contracts involving or affecting interstate commerce, strongly favors the enforcement of arbitration agreements. In other words, there is a strong likelihood that New York's prohibition on mandatory arbitration will be subject to challenge as being preempted by the FAA. The US Supreme Court's recent decision in Epic Systems Corp., which upheld the enforceability of arbitration agreements containing class and collective action waivers of wage and hour disputes, continues the Court's strong endorsement of the FAA.
- Additional notice requirements for NYC employers: Effective September 6, 2018, all employers in New York City must post an anti-sexual harassment rights and responsibilities poster and provide an information sheet on sexual harassment to each employee at the time of hire. The NYCCHR is required to create and make publicly available the poster and information sheet.
- Mandatory policy and training: Effective October 9, 2018, New York State Labor Law will require all employers to adopt a model anti-sexual harassment policy and annual anti-sexual harassment training program, as developed by the New York State Department of Labor and the NYSDHR, or a policy and training program that meets or exceeds the minimum standards outlined below.
The law requires that the model anti-sexual harassment policy, which must be provided to all employees in writing, include:
- A prohibition of sexual harassment and examples of prohibited conduct
- Information on state and federal anti-sexual harassment laws, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws (such as under the NYCHRL)
- Information on employees' rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
- A standard complaint form
- A procedure for the timely and confidential investigation of complaints that ensures due process for all parties
- A clear statement that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue and
- A clear statement that retaliation against individuals who complain of sexual harassment or testify or assist in any proceeding under the law is unlawful.
The law requires that the model annual anti-sexual harassment training be "interactive" (not defined) and include:
- An explanation and examples of conduct that would constitute unlawful sexual harassment under federal and New York State law
- Information concerning federal and state anti-sexual harassment laws and remedies available to victims of sexual harassment
- Information on employees' rights of redress and all available forums for adjudicating complaints and
- Information addressing conduct by supervisors and any additional responsibilities for such supervisors.
- Additional training requirements for NYC employers: Effective April 1, 2019, employers in New York City with 15 or more employees must conduct an annual "interactive" (defined as trainer-trainee interaction; use of audio-visuals; computer or online training program; or other participatory forms of training) anti-sexual harassment training for employees who work 80 or more hours per year on a full or part-time basis in New York City. Such employees, including interns and supervisory and managerial personnel, must receive the training within 90 days of their hire, unless the employee received the required training at their previous employer within their current employer's training cycle.
In addition to the information required by state law, the training must include: (1) an explanation and examples of sexual harassment under the NYCHRL; (2) an explanation of the internal complaint processes available to employees to address sexual harassment claims; (3) information on the prohibition of retaliation; (4) information concerning bystander intervention; and (5) the specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints. The NYCCHR is required to develop and make publicly available an online training module that employers can use to satisfy these training requirements, provided they separately inform all employees of any internal complaint processes available to address sexual harassment claims.
Lastly, employers are required to obtain, and retain for at least three years, a signed acknowledgement from each employee that he or she attended the training, which may be electronic.
- Additional requirements for contractors: Effective January 1, 2019, bids for state contracts will be required to contain language certifying that the entity: (1) has implemented an anti-sexual harassment policy that complies with the law's new requirements; and (2) provides annual anti-sexual harassment training to all of its employees. Failure to include such language will result in ineligibility for the contract unless the entity provides a signed statement explaining the reason why it cannot comply with the requirements. And effective July 8, 2018, New York City contractors and subcontractors must include their practices, policies, and procedures, as they relate to preventing and addressing sexual harassment, in the employment report they are required to submit under New York City's Charter and corresponding rules.
It is critical for employers to examine their policies and practices in light of these new developments. Please contact any of the authors or one of the following attorneys in the DLA Piper Employment Group for assistance or with any questions on these important issues:
Brian S. Kaplan
Joseph A. Piesco, Jr
Evan D. Parness