New York Employers—Get Ready, Get Set, Go!

Last month, both New York State (NYS) and New York City (NYC) passed eleven (11!!) bills requiring private employers with more than fifteen (15) employees to provide greater protections against sexual harassment in their workplaces.

Back in February, my partner Rich Cohen wrote that New York City may soon require private employers to implement sexual harassment training. Known as the “Stop Sexual Harassment in NYC Act,” this bill would require annual anti-sexual-harassment training for all employees, not just managers or supervisors; “from interns to executives,” as this Wall Street Journal article aptly termed it.

While the bills applicable to NYC employers await the signature of Mayor Bill de Blasio to become law, New York employers who want to ensure compliance should consider conducting a “gap analysis” review of their policies now in order to ensure compliance with the new laws and/or shore up their existing policies.

The New New York State Laws

In NYS, effective July 2018, employers cannot require their employees to sign contracts requiring arbitration of any sexual harassment claims (unless inconsistent with a collective bargaining agreement or federal law).

Why? What’s the point of this?

Well, as I noted here, a binding arbitration clause shields a company from public scrutiny in the event that sexual harassment allegations surface, and the employee loses the benefit of a potentially sympathetic jury pool and public opinion. Arbitration is a closed forum, can be as expensive as litigation, and the decision has no precedential value. In other words, coming forward with sexual harassment allegations is a lot harder for the employee.

Additionally, employers who settle sexual harassment claims can no longer include provisions in their settlement agreements preventing the disclosure of facts underlying the claims, unless the complaining party consents to it, which, again, shelters the employer from public scrutiny.

As of October 2018, all employers must (1) adopt a policy that meets or exceeds the State model sexual harassment policy’s standards; (2) distribute that written policy to its employees; and (3) implement an annual training program that meets the model training program’s standards. The training must address topics like anti-harassment laws, remedies, complaint and investigation procedures, and the additional obligations imposed on supervisory employees to address sexual harassment.

Effective immediately in New York State, i.e., as soon as the bill is signed into law,  employers will bear additional liability for sexual harassment – that is harassment committed against independent contractors or subcontractors, where it can be shown that the employer (a) knew or should have known about the harassment but did nothing about it, and (b) has sufficient control and “legal responsibility” over the harasser’s conduct.

This last one is huge, HUGE!

The federal anti-discrimination and anti-harassment law, Title VII of the Civil Rights Act of 1964, only protects employees against sexual harassment. So, until now, complainants who are independent contractors have had no recourse to either federal law, certainly, but also to the New York Human Rights Law, which tracks the federal law prohibition of unlawful harassment against employees.

By contrast, this new state law, holds employers responsible for sexual harassment alleged or committed by its own employees against even independent contractors (and make sure they are classified correctly as independent contractors).

New York City Goes One Step Further

Effective immediately, the NYC Human Rights Law (“NYCHRL”), which governs workplace harassment in NYC, will apply to all employers of any size (yep, even with just one or two employees), and the statute of limitations on sexual harassment will lengthen to three years.

Plus, effective April 2019, NYC employers will be required to provide to its employees (within 90 days of hire), a more rigorous annual sexual harassment training program that explains what sexual harassment and retaliation are, which laws they violate, and informs employees about complaint processes and the legal remedies available to them.

These training programs must be interactive (though they do not have to be live). We like to think that this new measure is a response to our blog because I wrote here, and as Rich reminded us, employers should “provide regular, interactive training so that employees can recognize, respond to, and prevent unlawful harassment (based on sex, race, age, etc.) tailored to your workplace.”

If Mayor de Blasio calls me, I’d be happy to share my PowerPoint presentation on these issues.

What Might Assist NY Employers With Compliance?

As suggested here, employers can go a step further by adding these parity considerations to the mix—

• Set specific goals for gender parity with attached target dates. For example, some companies have committed to 50/50 gender representation to help achieve gender equality in their workplaces;

• Conduct gender-bias audits of a company’s promotion process, looking for buzzwords like “aggressive” or “abrasive” in employee reviews; and

• Reschedule meetings not attended by a representative group of employees.

Also, it’s time to get out that employee manual (you have one, right?), dust it off, and consider whether you’re compliant with these soon-to-be enacted laws. Check your agreements, both employment and severance agreements, and ensure that they don’t require mandatory arbitration.

And, finally: training, training, training! Remember Sexual Harassment Prevention 101 says:

Provide regular, interactive, professional training to employees and managers tailored to your workplace so that they can recognize, respond to, and prevent unlawful harassment (based on sex, race, age, etc.) A “one size fits all” approach to training is generally ineffective. Further, training must be promoted by senior leaders to show commitment.

Oh, And One More Thing…

Employers should remember that asking about salary history during the hiring process (including in advertisements for positions (even online), on applications, or in interviews) is already illegal in New York City. Employers and applicants must negotiate based on the applicant’s qualifications and the job’s requirements.

These measures seem to go hand in hand with the incoming training module. We’ll be sure to let you know when New York’s (State and City) model training is established and published.