Working Together

New York employers are subject to several new laws enacted this year aimed at combating sexual harassment in the workplace. In New York, sexual harassment includes harassment not only on the basis of sex, but also on the basis of sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.

Two key components of the new legislation became effective on October 9, 2018 and apply to employers of any size in New York:

• Required written sexual harassment prevention policy. The policy must include specific information, such as examples of prohibited conduct; information concerning the federal and state statutory provisions concerning sexual harassment; remedies available to victims of sexual harassment; and a statement that there may be applicable local laws. A model policy is now available or employers may revise their current policy so long as it meets or exceeds the minimum standards of the model policy. The policy must include a complaint form or specify where a complaint form may be obtained (but the policy must also provide that employees can make verbal complaints). Current employees, new employees (prior to commencing work), applicants for employment, temporary employees and paid and unpaid interns all must receive a copy of the policy, and employers are encouraged to obtain an acknowledgement from each recipient. Employers are also encouraged, but not required, to post this sexual harassment prevention poster where employees can easily access it.
• Provision of annual sexual harassment training to current employees and interns, to be completed prior to October 9, 2019. The training must be interactive and must cover specified topics, including the types of conduct that would constitute unlawful sexual harassment; information concerning federal and state statutory provisions concerning sexual harassment; and remedies available to victims of sexual harassment. Model training materials are now available.

These requirements are codified at N.Y. Labor Law §201-g.

Other laws aimed at the prevention of sexual harassment in the workplace became effective earlier this year. These include provisions:

• Making employers liable for sexual harassment of certain non-employees in the workplace, including contractors, subcontractors, vendors, consultants and other persons providing services pursuant to a contract, if the employer knew or should have known that the non-employee was subjected to sexual harassment and failed to take immediate and appropriate corrective action (N.Y. Exec. Law §296-d, effective April 12, 2018);
• Prohibiting employers from using a mandatory arbitration provision in an employment contract in relation to sexual harassment (N.Y. CPLR §7515, effective July 11, 2018);
• Ensuring that nondisclosure agreements can only be used when the condition of confidentiality is the preference of the victim (N.Y. CPLR §5003-b, effective July 11, 2018); and
• Requiring officers and employees of the state or of any public entity to reimburse the state for any state or public payment made upon a judgment of intentional wrongdoing related to sexual harassment (N.Y. Pub. Off. Law §18-a, effective April 12, 2018).

Where Can Employers Obtain More Information?

New York recently released new guidance to help employers learn more about the minimum standards for sexual harassment prevention policies and trainings. Video training, materials in other languages, workshops and webinars are expected to be released in the future. If you have any questions, please contact one of our employment law attorneys.