You should be aware that in an effort to prevent sexual harassment in the workplace, both New York State and New York City recently enacted laws that apply to employers. Each of the New York State laws that are discussed below apply to all employers, no matter the number of employees. The New York City law was amended to prohibit workplace sexual harassment regardless of the number of employees, and certain of the sexual harassment prevention requirements we discuss below likewise apply regardless of the number of employees. However, the New York City law mandating anti-sexual harassment training applies, as noted below, only to employers with four or more employees.
Sexual Harassment Prevention Policy: The New York State law requires each employer to adopt a sexual harassment prevention policy by October 9, 2018 — either the model sexual harassment prevention policy promulgated by State agencies under the law, or a sexual harassment prevention policy that equals, or exceeds, the minimum standards under the model policy. It also requires each employer to distribute written copies of its sexual harassment prevention policy to all its employees by October 9, 2018. Distribution of the policy may be done electronically if employees are able to access and print a copy on a computer during work hours. (Signed acknowledgments of receipt by employees are not required, but they are encouraged and make good sense.)
Anti-Sexual Harassment Poster and Information Sheet: Starting September 6, 2018, New York City law requires all employers, without regard to the number of employees, to conspicuously display anti-sexual harassment rights and responsibilities posters, designed by the City’s Commission on Human Rights, in both English and Spanish.
Also effective September 6, 2018, New York City law requires all employers, regardless of number of employees, to distribute to individual employees at the time of hire an information sheet on sexual harassment to be developed by the Commission on Human Rights. The information sheet may be included in an employee handbook distributed to new employees. (Again, the law does not mandate signed employee acknowledgments of receipt, but they certainly make good sense.)
Sexual Harassment Prevention Training: The New York State law requires each employer, starting October 9, 2018, to provide sexual harassment prevention training to all of its employees (including full-time, part-time, and even temporary employees). Training may use either the model interactive sexual harassment prevention training program produced by State agencies under the law, or a sexual harassment prevention training program that equals, or exceeds, the minimum standards under the model program. All current employees must complete such training by January 1, 2019, and new employees must complete their training within 30 calendar days of starting their jobs. Thereafter, all employees must receive training at least once per year, but it is up to the employer to determine whether to base this on calendar year, anniversary of each employee’s start date, or some other date. (Here, too, the law does not require employers to obtain signed attendance acknowledgments by employees or to keep records of employee attendance, but either, or both, can protect employers if compliance issues are raised.)
The New York City law, effective April 1, 2019, applies to employers with four or more employees and requires that they conduct anti-sexual harassment training for all of their employees who work more than 80 hours per calendar year on a full-time or part-time basis. For existing employees, the first such training must take place within one year of April 1, 2019, and annually thereafter; for new employees, the first such training must take place within 90 days of hiring, and annually thereafter. Training may be conducted using the online interactive program to be developed by the NYC Commission on Human Rights under the law or using any alternative anti-sexual harassment training program that meets, or exceeds, the minimum standards under the Commission’s program. Employers are required to keep records of all trainings, and signed employee acknowledgements of training (which may be electronic) are mandatory.
Additional Sexual Harassment Prevention Provisions: Further changes have been made to New York State law that (a) hold an employer liable under certain circumstances for sexual harassment of non-employees (including independent contractors, temp workers, freelancers, and those employed by contractors or vendors) at the employer’s work location; (b) bans non-disclosure or confidentiality provisions in settlements of sexual harassment claims, except under certain limited circumstances; and (c) bans contract provisions requiring mandatory arbitration of sexual harassment claims, unless required under a collective bargaining agreement.
Bottom Line: Employers within New York State, and especially within New York City, need to review — and, if necessary, revise or expand — their anti-sexual harassment policies to make sure they comply with all applicable new laws. For employers in New York City, that includes coordinating the overlapping requirements of the various State and City sexual harassment prevention laws.