Hunton Employment & Labor Perspectives

Legislative responses to the #metoo movement continue to develop across the country.   Joining this movement, New York State and New York City recently have passed some of the strongest anti-harassment laws on the books.  Below is a summary of key elements for private employers: 

New York State Developments

• No Mandatory Arbitration of Sexual Harassment Claims. Effective July 11, 2018, section 7515 of the civil practice law and rules will prohibit employers with more than four employees from including in written employment contracts a clause that requires employees to arbitrate sexual harassment claims.
• Ban on Non-Disclosure Agreements. The general obligations law and the civil practice law will be amended to add new sections prohibiting confidentiality/nondisclosure clauses in settlements, agreements, or other resolutions of sexual harassment claims, unless the plaintiff/complainant prefers such a provision.  Even if there is mutual agreement to such a clause, the complainant must be provided 21 days to consider the clause after receiving the settlement agreement, with a seven-day revocation period following the execution of the agreement.  These provisions also take effect on July 11, 2018.
• Mandatory Sexual Harassment Policy and Training. New York Labor Law section 201-g now formalizes the requirement that all employers (public and private), as well as contractors who bid on state contracts, maintain written sexual harassment policies and annual sexual harassment prevention training.  Among other things, written policies must include a complaint form, explain the procedure used to investigate complaints, state that sanctions will be enforced against those who harass and against supervisors and managers who knowingly allow sexual harassment to continue.  Annual “interactive” sexual harassment training  (“interactive” is undefined) must be provided to all employees, but there is no recordkeeping requirement associated with this training. The State will create model policies and training programs.  These provisions take effect on October 9, 2018.
• Protections for Non-Employees. Effective April 12, 2018, New York Labor Law section 296-d extends the protections above to non-employees who provide services to employers in the capacity of contractors, subcontractors, vendors or consultants.

New York City Developments

• Statute of Limitations. The limitations period for filing gender-based harassment claims under the New York City Human Rights Law (NYCHRL) is extended from one to three years.  This takes effect immediately.
• Definition of Harassment. The NYCHRL is amended to clarify that sexual harassment is a form of discrimination, and extends gender-based harassment prohibitions to all employers in the City, not just those with four or more employees.
• Specific Training Requirements. Effective April 1, 2019, all private employers with fifteen or more employees must conduct “interactive” annual sexual harassment training, defined to include live trainer-trainee interaction, use of audio-visuals, computer or online training, or other participatory forms of training.  In contrast to the State program, the City requires recordkeeping:  all employees must sign forms acknowledging they have received training, which employers must save for at least three years.  The training must include information about the complaint process available at the City, State and Federal levels, provide examples of protected activity, offer  information about how to intervene as a bystander, and discuss the specific responsibilities of managers in preventing harassment and retaliation.

In response to these recent legislative developments, all employers with New York employees should review and (as necessary) revise their sexual harassment policies, employment contracts, settlement agreement templates and anti-harassment training programs.