May 09, 2018
Employment Law Alert
Employment Law Alert
Author(s): Tara E. Daub
The recently enacted Stop Sexual Harassment in New York City Act requires New York City employers to conduct annual anti-sexual harassment training and provide employees with multiple forms of notice of their rights. The law also expands the scope of anti-sexual harassment laws in New York City. This alert describes what employers need to know about this new law.
Yesterday, New York City Mayor Bill de Blasio signed into law legislation called the Stop Sexual Harassment in New York City Act (“Act”). The Act, which is designed to “be among the strictest anti-sexual harassment legislation in the country,” requires New York City employers to conduct annual anti-sexual harassment training, expands the statute of limitations for certain gender-based harassment claims and requires employers to post an anti-sexual harassment rights and responsibilities poster in the workplace and provide an anti-sexual harassment information sheet to new hires, among other requirements.
This legislation comes on the heels of recent state-wide legislation expanding sexual harassment laws in New York, as we previously reported. This alert summarizes the main points of the Act and how it will impact employers.
Effective April 1, 2019, private employers with 15 or more employees must annually conduct an “anti-sexual harassment interactive training” for all employees, including supervisory and managerial employees, “employed within the city of New York.” For purposes of this law, the term “employee” also includes interns. The law applies to all full-time and part-time employees who work more than 80 hours in a calendar year. Public employers, including federal, state and New York City governmental entities, are not subject to the law.
All covered employees must receive the training “after 90 days of initial hire.” However, an employee who has received anti-sexual harassment training at one employer within the required training cycle is not required to receive additional anti-sexual harassment training from a subsequent employer until the next cycle.
Furthermore, an employer that is subject to training requirements in multiple jurisdictions may assert that it is compliant with the law as long as the employer’s training program fulfils all the requirements of this law. In that case, the employer “shall be allowed to provide proof of compliance.”
The term “interactive training” is defined to mean “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 on Human Rights (“Commission”)].” While the training can be live or facilitated by an in-person instructor, that is not mandatory.
In order to meet the minimum requirements, the training must include at least the following:
Employers must keep a record of all trainings, including a signed employee acknowledgement, which may be electronic. Employers must maintain such records for at least three years, to be available for Commission inspection upon request.
The law requires that the Commission develop an online interactive training module that an employer can use to comply with the training requirements, so long the employer informs employees of any internal complaint process for reporting sexual harassment claims. Thus, it appears that employers may need to customize the training modules to account for their particular policies and practices. Although the Commission must post the training modules on their website, the law does not provide a deadline for the Commission to do so.
As we described in our prior alert, effective October 9, 2018, all New York State employers must provide anti-sexual harassment training to their employees. Although the training requirements under the state and city laws are similar, they are not identical, and it is unclear at this juncture how these two laws will interact, particularly in the absence of any rules, regulations or guidance at the local or state-wide level. Employers should review their current training materials and consult with counsel about the possibility of integrating the required training materials to avoid duplicative training, while ensuring compliance with both laws. We will continue to provide information regarding these laws as the state and local agencies publish regulations, guidance and models.
The Act includes amendments to several laws, which “represents a first step toward comprehensively ending sexual harassment in New York City,” according to Council Member Helen Rosenthal, the Chair of the Committee on Women of the New York City Council. In sum, the Act expands New York City’s anti-sexual harassment laws as follows:
Longer statute of limitations
The Act extends the statute of limitations for employees to submit NYCHRL claims of gender-based harassment with the Commission from one year to three years. This law is effective immediately.
Application to small employers
Effective immediately, the new law expands the applicability of “gender-based harassment” claims under the NYCHRL to small employers with less than four employees.
Employers must post an anti-sexual harassment rights and responsibilities poster designed by the Commission in employee breakrooms or other common areas, in both English and in Spanish. This law is effective on September 6, 2018.
Effective September 6, 2018, the Commission will also publish an information sheet regarding sexual harassment that employers must distribute to individual employees at the time of hire.
The new law requires the Commission to post on their website resources about sexual harassment in simple and understandable terms by August 7, 2018. This information includes an explanation that sexual harassment and retaliation is unlawful, examples of unlawful conduct, a description of the complaint process with the Commission and other government agencies, bystander intervention education and similar information.
New York City contractors
Effective July 8, 2018, New York City contractors must describe their employment practices, policies and procedures “related to preventing and addressing sexual harassment” in a pre-existing report associated with certain city contracts.
The Act amends the stated policy of the NYCHRL to state that “[t]he council further finds and declares that gender-based harassment threatens the terms, conditions and privileges of employment.”
Once the Commission publishes the required poster, employers should promptly comply with the posting requirements under the Act. Employers should also include the anti-sexual harassment information sheet—once published—with their onboarding materials. In addition, employers should examine and update their anti-sexual harassment policies and practices, particularly in the wake of the recent state-wide legislation, which requires New York employers to develop written anti-sexual harassment prevention policies.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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