Mission Impossible? Keeping Up With Changes in New York State and New York City Employment Laws

The New York State Legislature and New York City Council have proposed, passed, and implemented significant laws governing a wide range of workplace issues at a dizzying rate. For private employers, trying to keep up with the flurry of new laws is a daunting task. Below is a roundup of some of the key laws and important effective dates private employers should keep track of and incorporate into their policies and practices.

New York State: A Summary of Changes to Sexual Harassment Laws and Important Effective Dates

Captured within the New York state budget for fiscal year 2019, which has been agreed to by the New York State Legislature and Governor Andrew Cuomo, are significant measures developed in response to the impactful #MeToo movement. Not only do the new laws expand protections beyond the traditional employer-employee relationship, they also impose mandatory training requirements on employers. Below is a primer on the new state laws, as well as their effective dates.

1.      Effective Immediately: The protections against sexual harassment afforded by the New York State Human Rights Law are expanded to cover “non-employees,” such as contractors, subcontractors, vendors, consultants, and others. The changes make it an unlawful discriminatory practice “for an employer to permit sexual harassment of non-employees in its workplace.” Further, an employer may be found liable “when the employer, its agents or supervisors knew or should have known that such non-employee was subjected to sexual harassment in the employer’s workplace, and the employer failed to take immediate and appropriate corrective action.” Part KK, Subpart F.

2.      Effective July 11, 2018: Except where inconsistent with federal law or as required by a collective bargaining agreement, New York State prohibits the use of mandatory arbitration clauses to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment. Other mandatory agreements are expressly permitted, but prohibited clauses will be deemed null and void, without further impairment to the overall arbitration agreement. Part KK, Subpart B.

3.      Effective July 11, 2018: The new law amends the New York State General Obligations Law and the Civil Practice Law and Rules to prohibit the use of nondisclosure provisions and agreements related to any cause of action or claim of sexual harassment, including in a settlement agreement or other resolution of a claim for which the “factual foundation . . . involves sexual harassment.” A nondisclosure provision may be included only if it is the “complainant’s preference.” In the event such a term is the “complainant’s preference,” the complainant must be provided the provision to review and be given 21 days to consider the provision. If, after 21 days, such term or condition is the complainant’s preference, it must be expressed in writing in an agreement signed by all parties. The complainant must be given seven days to revoke the agreement. The agreement does not become effective until the revocation period expires. Part KK, Subpart D.

4.      Effective October 9, 2018: The new law requires employers to implement mandatory annual training programs and distribute written anti-harassment policies. The law directs the New York State Department of Labor to consult with the New York State Division of Human Rights to create and publish a model policy and sexual harassment prevention training program. Part KK, Subpart E. The specific requirements of the policy and training program are set forth below.

A sexual harassment prevention policy must include

• a prohibition against sexual harassment and examples of prohibited conduct that would constitute unlawful sexual harassment;
• information on the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
• a standard complaint form;
• a complaint procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
• a notice informing employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
• a statement that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
• a statement that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.

Annual sexual harassment prevention training programs must include

• an explanation of sexual harassment;
• examples of conduct that would constitute unlawful sexual harassment;
• information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment; and
• information concerning employees’ rights of redress and all available forums for adjudicating complaints.

In addition to the above, the sexual harassment prevention training program must be interactive.

5.      Effective January 1, 2019: Where competitive bidding is required for certain state or public contracts, bids must contain a statement affirming that the bidding entity implemented a written policy addressing sexual harassment prevention and that it provides annual sexual harassment prevention training. The following statement must be subscribed and sworn to as true: “By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing sexual harassment prevention in the workplace and provides annual sexual harassment prevention training to all of its employees. Such policy shall, at a minimum, meet the requirements of section two hundred one-g of the labor law.” Where competitive bidding is not required, state departments and agencies may, at their discretion, require the above certification. Part KK, Subpart A.

New York City: A Summary of Changes to Sexual Harassment Laws, Other New Workplace Laws and Important Effective Dates

In recent weeks, the New York City Council passed the Stop Sexual Harassment in NYC Act, significant legislation aimed at combating and preventing sexual harassment in the workplace. Mayor Bill de Blasio is expected to sign the legislation into law. In addition, prior to the passage of the Stop Sexual Harassment in NYC Act, the New York City Council passed laws broadening the definitions of sexual orientation and gender under the city’s human rights law, expanded the covered reasons for leave to include matters related to family offenses, sexual abuse, stalking, and human trafficking, and enacted other significant changes for private employers. Below is a primer on New York City’s new laws, as well as their effective dates.

Summary of The Stop Sexual Harassment in NYC Act

1.      Effective immediately upon signing: The scope of the New York City Human Rights Law regarding claims of gender-based harassment is expanded to cover all employers, regardless of the size of the employer. Int. 0657-2018.

2.      Effective immediately upon signing: The statute of limitations for filing complaints with the New York City Commission on Human Rights for “claim[s] of gender-based harassment” under the New York City Human Rights Law is extended from one year to three years. Int. 0663-2018.

3.      Effective immediately upon signing: The policy statement of the New York City Human Rights Law will be amended to include a statement declaring that “gender-based harassment threatens the terms, conditions and privileges of employment.” Int. 0660-2018.

4.      Effective 60 days after signing: The law amends the employment report requirement for certain city contractors to include employment practices, policies, and procedures “related to preventing and addressing sexual harassment.” Int. 0693-2018.

5.      Effective 90 days after signing: The law also directs the New York City Commission on Human Rights (City Commission) to post on its website resources about sexual harassment, including (1) an explanation that sexual harassment is a form of unlawful discrimination under New York City law; (2) specific descriptions and examples of sexual harassment; (3) information about the City Commission’s complaint process and how to contact the Commission; (4) a list of other government agencies for filing complaints; (5) an explanation of retaliation, “including . . . retaliation for complaints concerning allegations of sexual harassment . . . and examples of activities which may be retaliation for such complaints”; and (6) information on bystander intervention. Int. 0614-2018.

6.      Effective 120 days after signing: All employers must display an anti-sexual harassment rights and responsibilities poster and distribute an information sheet on sexual harassment at the time of hire. Both the poster and information sheet will be made available on the City Commission’s website. Int. 0630-2018.

7.      Effective April 1, 2019: Employers with 15 or more employees, including interns, must provide mandatory, interactive, annual anti-sexual harassment training for all employees, including supervisory and managerial employees. “Such training shall be required after 90 days of initial hire for employees who work more than 80 hours in a calendar year who perform work on a full-time or part-time basis.” Int. 0632-2018. The training must include

• an explanation of sexual harassment as a form of unlawful discrimination under City law;
• a statement that sexual harassment is also a form of unlawful discrimination under state and federal law;
• a description of sexual harassment and use of examples;
• any internal complaint process available to employees to address sexual harassment claims;
• the complaint process available through the City Commission, the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission, including contact information;
• a prohibition on retaliation and examples;
• information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention; and
• the specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.

Under the law, “interactive training” is defined as “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory forms of training as determined by the commission.” However, live training or training facilitated by an in-person instructor is not required. Int. 0632-2018.

Employers must also maintain records of the trainings, as well as signed employee acknowledgments, for at least three years. Int. 0632-2018.

Other New York City Laws, Amendments, and Important Dates

Although the changes to New York City’s laws on sexual harassment have received much attention, there are other statutory requirements that employers must know and implement in the coming days, weeks, and months.

1.      Effective May 5, 2018: Employers must provide employees with “safe” time related to family offense matters, sexual abuse, stalking, and human trafficking. This requirement is an amendment to the New York City Earned Sick Time Act, now known as the New York City Earned Safe and Sick Time Act. Int. 1313-2016.

2.      Effective May 10, 2018: An amendment to the New York City Human Rights Law expanding the definitions of sexual orientation and gender will soon take effect. The amended law now defines “sexual orientation” as “an individual’s actual or perceived romantic, physical or sexual attraction to other persons, or lack thereof, on the basis of gender. A continuum of sexual orientation exists and includes, but is not limited to, heterosexuality, homosexuality, [or] bisexuality, asexuality, and pansexuality.” The amendment further expands the definition of “gender” to include “gender identity, and gender expression including a person’s actual or perceived gender-related self-image, appearance, behavior, expression, or other gender-related characteristic, regardless of the sex assigned to that person at birth.” Int. 1186-2016.

3.      Effective July 18, 2018: Employers will be required to grant temporary schedule changes to covered employees to (1) provide care to a minor child or to a person living in the caregiver’s household with a disability who relies on the caregiver for medical care or the needs of daily living; (2) “attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member or the employee’s care recipient is a party”; or (3) attend to “any circumstance that would constitute a basis for permissible use of safe time or sick time” under the New York City Earned Safe and Sick Time Act. Under the law, employers are required only to grant temporary changes two times per calendar year for up to one business day per request. An employer may also permit an employee to use two business days for one request; in such an event, a second request is not required. The law also provides for strict notice requirements. Note, if employees are covered by a valid collective bargaining agreement in effect on the effective date, then the law will take effect on the termination date of such agreement. Int. 1399-2016.

4.      Effective October 15, 2018: An amendment to the New York City Human Rights Law requires covered employers to engage in a “cooperative dialogue” in connection with employees’ requests for reasonable accommodation related to religious needs, disabilities, pregnancy, childbirth or related medical conditions, or employees’ needs as victims of domestic violence. At the conclusion of the cooperative dialogue, employers must make a written final determination identifying any accommodation granted or denied. The amendment makes it an unlawful discriminatory practice for a covered employer to “fail to engage in a cooperative dialogue within a reasonable time” with anyone who has requested an accommodation or anyone whom the employer “has notice may require such an accommodation.” Int. 0804-2015.

Next Steps for Employers

New York State and New York City employers should begin to review and revise their employment policies, practices, and training programs, as necessary, to comply with changes in the law. In addition, employers may want to implement necessary administrative functions to ensure compliance with the various amendments regarding cooperative dialogue, prohibited arbitration provisions, nondisclosure provisions, and notice and recordkeeping requirements, as well as all other requirements mandated by New York State and New York City.

The attorneys of Ogletree Deakins’ New York City office will cover these developments in further detail in an upcoming article. Stay tuned.

A version of this article first appeared in the New York Business Journal.