Employment Law Alert
September 5, 2018
New York's #MeToo Moment
In what may seem to some a matter of political expediency, and to others a long-overdue effort to eradicate workplace sexual harassment, New York Governor Andrew Cuomo and New York Mayor Bill de Blasio appear to be competing for the “#MeToo Movement Championship.” Whatever their motivations, they have signed into law sweeping legislation that affects all New York employers. 

Scope of Employers’ Obligations

Together, the New York State Budget Bill for Fiscal Year 2019 and the Stop Sexual Harassment in NYC Act expand employer obligations and employees rights by, among other matters: (1) extending sexual harassment protection to non-employees; (2) requiring annual, “interactive” sexual harassment training; (3) mandating employers adopt written sexual harassment policies; (4) prohibiting mandatory arbitration of sexual harassment claims; and (5) banning nondisclosure agreements (“ NDAs ”) involving sexual harassment claims with limited exceptions.

Highlights and Effective Dates

New York State
  • Non-employees protected: now in effect, under Human Rights Law Section 296-D, all employers may be liable for the sexual harassment of non-employees in the workplace, such as contractors, subcontractors, vendors and consultants, performing services pursuant to a contract, if “the employer … knew or should have known, that the non-employee was subjected to sexual harassment in the employer's workplace and … failed to take immediate and appropriate corrective action.” This law parallels New York City’s Human Rights Law which has long protected independent contractors.

  • Nondisclosure Agreements (“NDAs”): now in effect, General Obligations Law §5-336, and Civil Practice Law and Rules (“CPLR”) §5003-b, prohibit confidentiality provisions in a written agreement involving a claim of sexual harassment that preclude the disclosure of the “underlying facts and circumstances to the claim or action,” unless it is the “complainant’s preference.” In addition, the complainant “shall” be given 21 days to consider the confidentiality condition, and then have an additional 7 days to revoke the agreement. Based on the express language of GOL §5-336 and CPLR §5003-b, it appears that (1) they apply to all sexual harassment claims, not just those filed in court, (2) do not bar NDAs relating to the financial component of a settlement, and (3) the 21-day review and 7-day revocation period cannot be waived.

  • Mandatory Arbitration Banned: CPLR §7515 was added and (1) prohibits pre-dispute agreements that require employees to arbitrate claims of sexual harassment with their employers, and (2) appears to render existing, mandatory arbitration agreements “null and void,” “except where inconsistent with federal law.” The reference to “federal law” is to the Federal Arbitration Act, which may pre-empt this law. In addition, the law does not apply to arbitration provisions included in collective bargaining agreements.

  • Annual Sexual Harassment Policy and Training: effective October 9, 2018, New York Labor Law §201-g will require every employer, regardless of size, either to adopt a model sexual harassment prevention policy and training program that will be developed by the New York Department of Labor and the Division of Human Rights, or to institute its own policy and program that meets or exceeds the State’s minimum standards. At a minimum, the policy and sexual harassment training, which must be interactive, must be provided to all employees on an annual basis.

  •  State Contract Bidders: effective January 1, 2019, New York Finance Law §139-L will require any employer bidding on a state contract to certify, under the penalty of perjury, that it has a written sexual harassment prevention policy and provides annual harassment training to its employees.

New York City
  • All Employers Covered: now in effect, NYC Human Rights Law, Section 8-102 of the New York City Administrative Code (“NYCAC”) was amended to prohibit gender-based harassment against any employee, regardless of the size of the employer. (Formerly, the law applied only to employers with four or more employees).

  • Statute of Limitations Expanded: now in effect, NYC Human Rights Law, NYCAC §8-109(e) was amended to extend the statute of limitations for sexual harassment claims from one year to three years. For claims other than gender-based harassment, the statute of limitations remains one year.

  • Poster and Information Requirement: effective September 6, 2018, NYC Human Rights Law, NYCAC §8-107(29) will require employers to display anti-sexual harassment rights and responsibilities posters (in English and Spanish) in conspicuous areas, and to distribute anti-sexual harassment information literature to all new employees upon hiring. The poster was created by the NYC Human Rights Commission and is available at: https://www1.nyc.gov/site/cchr/media/sexual-harassment-campaign.page.

  • Annual Sexual Harassment Training: effective April 1, 2019, NYC Human Rights Law, NYCAC §8-107(30) will require employers with 15 or more employees to conduct annual, interactive sexual harassment training for all employees employed in New York City. The NYC Human Rights Commission is also responsible for creating and posting an interactive training module on its website. New employees are required to receive the training within 90 days of hire.
As stated above, the State law applies to employers while the NYC law applies only to those with 15 or more employees in NYC. The NYC Act also indicates that credit will be given to employers who are subject to training in multiple jurisdictions provided the training is annual and covers the topics mandated by the law.
As always, if I can be of any assistance, please don't hesitate to contact me.
Lauren X. Topelsohn, Esq.
Member, Labor and Employment Practice