WhatMeTooWhat? Me Too?
Both New York City and New York State are mandating additional protections for individuals claiming they have been subjected to sexual harassment.  Employers who have businesses in New York City will have to comply with the expansion of both State and Local Law.  Here's what's happening.

New York State Employers

If you are a New York State employer with even one employee, you can be held liable for sexual harassment under the New York State law.  Now, New York State recently has further expanded this protection to require anti-sexual harassment training, policy requirements and restrictions relating to settlement agreements.

Most significantly, as of October 9, 2018, every employer in New York State must adopt a written anti-sexual harassment policy and begin to conduct annual training.  In advance of that date, the New York State Department of Labor and the New York State Division of Human Rights are supposed to issue a model anti-sexual harassment policy and a training program.  Employers may use the government issued materials or develop their own policies and trainings if they meet or exceed the standards set by the State.  According to the legislation, the training must, at a minimum, include the following components:
  An explanation of sexual harassment consistent with guidance from the
     New York State Division of Human Rights;
  Information about federal and state provisions about sexual harassment
    and the remedies available to individuals;
  Examples of sexual harassment;
  Information about an employee's right to redress and each forum available
     to an employee in which the employee can pursue a claim for sexual   
  Information about the conduct required of supervisors and their    

Employers will also be required to maintain a sexual harassment prevention policy with specific criteria and a policy that states that retaliation based on an individual making a sexual harassment complaint or participating in a sexual harassment investigation is prohibited.

Apart from expanding the requirements imposed on employers, the State law will also restrict certain aspects of settlement agreements and arbitration agreements. Effective July 11, 2018, the law will prohibit non-disclosure clauses in any settlement agreement or other resolution of a claim or cause of action in which the factual foundation for which involves sexual harassment, unless: 1) the complainant desires to have such information to be deemed confidential in such a provision; 2) the complainant is given 21 days to consider a non-disclosure provision; and 3) a 7 day revocation period to revoke the agreement if it has a non-disclosure clause. The non-disclosure clause will not become effective until after the 7-day revocation period expires. Arguably, this provision does not apply to non-disclosure language that only restricts disclosure of the amount and terms of the settlement.

The new law also bars mandatory arbitration clauses for sexual harassment claims in most cases, as of July 11, 2018.

Effective immediately, the law also extends the coverage of the law against sexual harassment to non-employees in the workplace, including contractors, vendors, subcontractors or consultants if the employer or supervisors knew or should have known about the harassment and did not take immediate and appropriate corrective action.

Lastly, state contractors who wish to do business with the state of New York will be required, effective January 1, 2019, to affirm in their bid proposals that the contracting organization or bidder has implemented a policy addressing sexual harassment prevention in the workplace and conducts annual training for all employees.

New York City Employers

Not to be outdone by New York State, the New York City Council has just passed a package of perquisites respecting sexual harassment in the workplace that Mayor DeBlasio is expected to sign any day.

Once the law is signed and currently scheduled to take effect about a year from now on April 1, 2019, employers in New York City with 15 or more employees will also be subject to New York City's very specific requirements respecting adoption of a sexual harassment policy and anti-sexual harassment training.  The law specifies that all full time and part time employees who work 80 hours or more in a calendar year must receive this training and that new hires must be given anti-sexual harassment training within 90 days of hire.  The New York City law requires some additional factors, such as an explanation of sexual harassment as a form of unlawful discrimination under the New York City Human Rights law, as well as under state and federal law, an explanation of internal complaint processes and external complaint processes through the New York State Division and the Equal Employment Opportunity Commission, together with contact information.  The most significant distinctions from the New York State requirements is that in New York City, employers will be required to provide training and information on "bystander intervention" - interception of a potentially sexually harassing situation by a third person, as well as training for managers that addresses the responsibilities of supervisors sand managers to prevent sexual harassment, retaliation and measures that they can take to address sexual harassment complaints.

In addition, New York City contractors will be subject to reporting obligations, requiring them to report their policies, procedures and practices relating to the prevention and addressing of sexual harassment in their workplaces.

The New York City law amendments go further and will immediately extend the statute of limitations for the filing of sexual harassment complaints with the New York City Human Rights Commission from one year to three years.  It also requires that within 120 days of the Mayor signing the legislation that employers provide new employees an information sheet on sexual harassment at the time of hire.

What Do You Do?

Employers should immediately begin reviewing their anti-sexual harassment policies and procedures to compare them against the outline of criteria they will need to meet under one or both of these laws, as applicable.  Looking into training modalities may also be helpful. However, before making any changes, employers may want to wait until New York State issues its model policies and training prototype to either use it or to make sure an employer's own materials comport with the law.  Employers who may be in the process of settling a sexual harassment claim should do so as soon as possible.
DontAskDon't Ask...
Employers in Albany County and New York City are now prohibited from asking applicants for employment about their salary histories.

In New York City, employers of any size are prohibited from asking about an applicant's salary history, including the amount of any commission earned, during the hiring process.  This includes interviews, advertising for a position and job applications.  Employers may still ask an applicant about the applicant's compensation expectations and demands, but not about the salary history, even if the employer makes clear such a request is voluntary.  References to salary history must be removed from job applications, even if the employer uses the application for another jurisdiction. A boilerplate disclaimer that applicants for jobs in New York City need not provide an answer is insufficient.  In addition, employers should direct that in the case of background checks, no salary history be included.  If, however, an applicant without prompting and voluntarily discloses his/her salary history, the employer may consider and/or verify that information.  The law defines "without prompting" to mean the average job applicant would not think the employer encouraged the disclosure based on the total context.  Employers are also prohibited from obtaining salary history information from an alternate source.

Employers with 4 or more employees in Albany County are similarly barred from asking applicants for employment about their prior wages or other compensation.  The Albany County law also prohibits employers from screening applicants based on prior wages or compensation, requiring that an employee's prior wages meet a minimum or maximum standard or seeking compensation information from the applicant's prior employer(s).  Only AFTER extending a written offer of employment that contains a description of the compensation being offered, together with the written authorization of the applicant, may an employer then confirm the prior wages, benefits or other compensation.

Employers in New York City and Albany County should review their job applications, job advertisements and interview process to make sure they are compliant with these laws, as applicable.