New York State and City Sexual Harassment Legislation Signed into Law

We recently issued a client alert warning about proposed legislation pending in New York State and City that would place specific requirements on employers as to how to address, resolve and prevent claims of workplace sex harassment. That legislation has now been signed into law, both at the state and local level. The effective dates range from immediate to April 2019, depending on the law involved. This advisory sets forth the requirements of the new laws as well as the effective date for each.

On April 12, 2018, Governor Cuomo signed the state-level legislation into law. Accordingly, the effective dates of that legislation are as follows:

• Effective immediately, employers may be held liable by non-employees who provide services pursuant to a contract in the workplace (such as contactors, “freelancers,” vendors or consultants) for sexual harassment. “In reviewing such cases involving non-employees, the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the harasser shall be considered.”  While the new law allows employers to limit their liability for the sexually harassing conduct of individuals beyond their direct control (for example, customers in a retail establishment), employers are advised to adopt, publish and enforce policies that make clear that they will not tolerate inappropriate conduct by anyone in their workplace.
• That part of the new law prohibiting agreements to arbitrate claims of sexual harassment “[e]xcept where inconsistent with federal law” will become effective on July 11, 2018.  As explained in our prior update, it appears that this provision is preempted by the Federal Arbitration Act in its entirety; however, employers who enter into arbitration agreements with their employees are encouraged to consult with counsel prior to the July 11 effective date to evaluate the risks and benefits of continuing to use arbitration agreements in the employment context. 
• Also effective as of July 11, 2018 is that part of the law concerning agreements to maintain the confidentiality of facts underlying agreements to settle claims of sexual harassment. In agreements to settle such claims, employers should memorialize the fact that it is the complaining party who wishes to keep the facts underlying the claim confidential (assuming that is the case), and must extend to the complaining party the 21-day consideration and seven-day revocation periods set forth in the new law in those cases. 
• By October 9, 2018, employers are required to either adopt policies prohibiting sexual harassment promulgated by the New York State Department of Labor (the “NYSDOL”) in consultation with the New York State Division of Human Rights (“NYSDHR”) or have their own policies in place that equal or exceed the standards set by the NYSDOL.  It is presumed that the NYSDOL and NYSDHR will publish that guidance prior to the October 9, 2018 effective date. 
• October 9, 2018 is also the effective date of the new law’s requirement that employers provide annual sexual harassment training for all their employees. Thus, employers will be required to have provided such training to their employees by no later than October 9, 2019.  Here too, it is presumed that the NYSDOL and NYSDHR will have promulgated training modules in advance of the effective date of the legislation. 

On May 9, 2018, Mayor Bill Di Blasio signed the city-level legislation into law. The operative dates for that legislation are as follows:

• The effective date of that part of the city legislation mandating annual interactive anti-sexual harassment training is April 1, 2019 (not September 1, 2018, the effective date proposed in the original version of the legislation). All employers in New York City with 15 or more employees will be required to provide such training to their employees by April 1, 2020, and annually thereafter. 
• Effective immediately, that part of New York City’s administrative code prohibiting workplace sexual harassment applies to all employers, regardless of size (previously, the law applied only to those employers with four or more employees). The City Commission on Human Rights now has jurisdiction over all such claims filed within three years of the alleged harassing conduct. 
• By September 6, 2018, employers will be required to “conspicuously display” posters providing notice to employees of the unlawful nature of sexual harassment “in employee breakrooms or other common areas employees gather.” Under the statute, the poster “shall be made available on the [City Commission on Human Rights] website for employers to download.”