In response to the #MeToo movement, New York State and New York City have recently enacted sweeping and partially overlapping workplace anti-sexual harassment laws, some provisions of which have already gone into effect while others will go into effect between now and April 1, 2019 (as indicated below). The new laws apply to both staff employees (full-time and part-time) and, for staffing firms, consultants/temporary employees who are their employees. Perhaps the most significant of the new
provisions is mandatory annual sexual harassment training for employees.

I. NEW YORK STATE

A. Overview

The 2018 – 2019 State Budget that was signed into law by Governor Cuomo in April of this year contains the following significant provisions addressing workplace sexual harassment:

• • Effective April 12, 2018 – the New York State Human Rights Law has been expanded to protect non-employees (contractors, subcontractors, vendors, consultants and other persons providing services pursuant to a contract (and their employees) from sexual harassment at an employer’s worksite where the employer, its agents or supervisors, “knew or should have known” that the non-employee was subjected to sexual harassment at its worksite and failed to take appropriate corrective action.
  • Effective July 11, 2018 – a ban on pre-dispute contract provisions requiring the mandatory arbitration of sexual harassment claims, except where inconsistent with federal law¹

or collective bargaining agreements.

• Effective July 11, 2018 – a ban on confidentiality provisions in settlement agreements that would prevent disclosure of the underlying facts of a sexual harassment claim, unless the confidentiality provision is the “complainant’s preference,” the complainant’s preference for the confidentiality provision is set forth in the settlement agreement, the complainant is given 21 days to consider the confidentiality provision and seven days following signing of the settlement agreement to revoke the agreement.²
• Effective October 9, 2018 – all employers with employees who physically work in New York State (regardless of the number of such employees) must adopt and distribute to such New York- based employees (including, for staffing firms, consultants/temporary employees who are their employees) a written anti-sexual harassment policy (that includes a standard complaint form) and implement annual interactive anti-sexual harassment training programs for such employees (including, for staffing firms, consultants/temporary employees who are their employees) that meet or exceed (i) policies and programs to be promulgated by the New York State Department of Labor or (ii) certain specified requirements of the New York State Department of Labor and the Division of Human Rights.
• Effective January 1, 2019 – all companies submitting bids for New York State contracts must certify under penalty of perjury in their applications that they have adopted written anti-sexual harassment policies and annual interactive anti-sexual harassment training programs that comply with the foregoing requirements contained in the new State law.

B. Mandatory Anti-Sexual Harassment Policy and Training

The law requires the Department of Labor, in consultation with the Division of Human Rights, to create and publish a model sexual harassment preventive guidance document and policy that employers may use. That policy would:

• prohibit sexual harassment and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
• include information concerning 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;
• include a standard complaint form;
• include a procedure for the timely and confidential investigation of complaints and due process
  for all parties involved;
• inform employees of their rights of redress and all available administrative and judicial forums for determining their sexual harassment complaints;
• clearly state 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
• clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.

The law also requires the Department of Labor, in consultation with the Division of Human Rights, to develop an interactive training program that includes:

• 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;
• remedies available to victims of sexual harassment;
• information concerning employees’ rights of redress and all available forums for determining their complaints; and
• conduct by supervisors and any additional responsibilities for them.C. New York State Draft GuidanceIn August, New York State issued for comment³ draft guidance under the new law and created a dedicated website (https://www.ny.gov/programs/combating-sexual-harassment-workplace) that contains a model sexual harassment prevention policy, a model complaint form, frequently asked questions, and model training materials. The website also contains proposed “minimum standards” guidelines for employers to use if they wish to create their own anti-sexual harassment policies and training programs.The draft guidance states that all New York State-based employees (regardless of the number of hours per week or number of weeks that they work in New York State) must complete the model training or a comparable training that meets the minimum standards by January 1, 2019; and, thereafter, they must be trained at least once per year. In subsequent years, this may be based on the calendar year, anniversary of each employee’s start date or any other date the employer chooses. New employees who start work after January 1, 2019 must complete their training within 30 calendar days after “starting their job.” For consultants/temporary employees who are employees of staffing firms, we believe this means within 30 calendar days after commencing their first assignment for the staffing firm.Since the guidance does not specifically address consultants/temporary employees who are employees of staffing firms, it is presently unclear whether the annual training requirement will continue for such a consultant/temporary employee who does not work for a staffing firm in a subsequent year but remains in its general candidate pool.Although the guidance does not address the obligation to pay for time spent in training, we believe that hourly employees (including, for staffing firms, consultants/temporary employees who are their employees and paid hourly) must be paid for such time since it is being required of them by their employer. However, a staffing firm theoretically could pay such consultants/temporary employees at a lower hourly rate for such training time than the rate they are paid when assigned to clients.

  The draft guidance defines “interactive training” to mean that it requires some form of employee participation, such as:

  • web-based with questions asked of employees as part of the program;
  • accommodating questions asked by employees;
  • a live trainer made available during the session to answer questions; and/or
  • feedback from employees about the training and the materials presented.

  II. NEW YORK CITY

  On May 9, 2018, Mayor de Blasio signed into law the Stop Sexual Harassment in NYC Act (the “Act”), consisting of a series of 11 separate bills to combat workplace sexual harassment. Some of the Act’s provisions have already gone into effect and other parts will go into effect between now and April 1, 2019, as indicted below.The key provisions of the Act, which overlap in part with the new New York State anti-sexual harassment law, are as follows.

  • Effective May 9, 2018 – the New York City Human Rights Law (the “NYCHRL”) has been amended to permit sexual harassment claims by employees, regardless of the size of the employer.⁴ In addition, the statute of limitations for filing complaints with the New York City Commission on Human Rights has been extended from one year to three years after the alleged conduct took place.
  • Effective September 6, 2018 – New York City employers are required to conspicuously post in their NYC offices an anti-sexual harassment rights and responsibilities poster (both in English and Spanish) and distribute an information sheet on sexual harassment to their NYC-based employees (including, for staffing firms, consultants/temporary employees who are their employees) who start work on and after that date, on forms to be issued by the Commission on Human Rights. The information sheet may be, but is not required by law to be, distributed to NYC-based employees who started work prior to September 6, 2018. Copies of the recently issued poster and information sheet are attached to this Advisory.
  • Effective April 1, 2019 – employers with 15 or more New York City-based employees are required to conduct annual anti-sexual harassment training for all such employees, including supervisory and managerial employees (and, for staffing firms, consultants/temporary employees who are their employees). For employees hired after April 1, 2019, such training is required after 90 days of “initial hire” for employees who work more than 80 hours in a calendar year in New York City, whether on a full-time or part-time basis.⁵ The Commission on Human Rights is to develop in the upcoming months a publicly available online sexual harassment training module that employers can use. The required training must be interactive and, subject to further guidance from the Commission on Human Rights, should largely track the requirements of New York State’s new anti-sexual harassment law, with the following specific requirements:
    • a description of the internal complaint process available to employees to address sexual harassment claims;
    • information concerning the complaint process available through the Equal Employment Opportunity Commission (EEOC), the State Division of Human Rights and the City Commission on Human Rights (including contact information for those agencies);
    • an explanation of retaliation and examples of prohibited retaliatory conduct;
    • information concerning bystander intervention, including resources that explain how to
      engage it; and
    • specific responsibilities of supervisory and managerial employees in preventing sexual harassment and retaliation.

  Under the Act, employers are required to keep a record of the training, including signed employee acknowledgments, for a period of three years. The City Commission on Human Rights’ dedicated website is located at (https://www1.nyc.gov/site/cchr/law/stop-sexual-harassment-act.page).
  We will provide further guidance as information becomes available.

  * * *

  To the extent that companies with New York-based employees have not already done so, they should consult with counsel to update their handbooks and employment policies, review existing agreements that may contain provisions requiring the arbitration of sexual harassment claims, and prepare to implement the new anti-sexual harassment training requirements. Companies with 15 or more NYC- based employees should consider adopting policies and training programs that satisfy the requirements of both the New York State and New York City laws.

  For more information about this Advisory or assistance with compliance, please contact Paul Pincus at (212) 588-0022 or php@orllp.legal.

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  ¹ Future court challenges may hold that this provision is pre-empted by the Federal Arbitration Act, particularly in light of the broad language favoring arbitration contained in the U.S. Supreme Court’s recent Epic Systems v. Lewis decision (holding that the Federal Arbitration Act permits employers to require individual arbitration of wage and hour claims).

  ² This requirement adopts the time periods for review and revocation contained in the federal Older Workers Benefit Protection Act for settlement agreements with employees over 40 years old.

  ³ The comment period ends on September 12, 2018, after which final guidance and materials will be issued.

  ⁴ Previously, the anti-discrimination provisions of the NYCHRL applied only to employers with four or more New York City-based employees.

  ⁵ The Act does not define “initial hire” and it is, therefore, unclear for staffing firms if that means when a consultant/temporary employee is accepted into its general candidate pool or commences an assignment. New York State’s more stringent requirement to provide training to employees within 30 calendar days after “starting their job” and without regard to the number of hours worked appears to override NYC’s more relaxed timeframe for training.

  © 2018 Ortoli Rosenstadt LLP