Changes to Sexual Harassment Laws in New York

New York’s sexual harassment laws have recently undergone several important changes that all New York employers should pay attention to. On April 12, 2018, New York Governor Andrew Cuomo signed into law the 2019 NYS budget which contains a number of laws aimed at preventing sexual harassment in the workplace.

Important Changes to State Labor Laws

First, the scope of the New York State Human Rights Law was expanded to provide protection against sexual harassment to non-employees, including contractors, subcontractors, vendors, consultants and others who provide services under a contract. Second, New York law now forbids employers from requiring employees to submit their sexual harassment claims to mandatory arbitration. Third, New York employers are now generally prohibited from including non-disclosure provisions in any settlement agreements related to sexual harassment claims.

The change that will likely have the biggest impact on New York employers, however, is that starting October 9, 2018, all New York employers are required to adopt a written sexual harassment policy and conduct annual trainings for all employees (not just supervisors) which must be “interactive.” The New York Department of Labor and Division of Human Rights have published a model sexual harassment policy and training program, both of which can be located at NYS Model Policy and NYS Model Training.

Employers may adopt the model policy and training program or produce their own program that “equals or exceeds” the minimum standards in the model program.

At a minimum, the employer’s policy must:

(a) prohibit sexual harassment consistent with guidance issued by the New York Department of Labor and provide examples of prohibited conduct;

(b) include information on the federal and state sexual harassment laws and remedies available to victims;

(c) include a model complaint form for employees to submit their claims to the employer in writing (available here);

(d) include a procedure for the timely and confidential investigation of complaints;

(e) include information about an employee’s rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;

(f) 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 supervisors who knowingly allow such behavior to continue; and

(g) clearly state that retaliation against individuals who complain of sexual harassment or who assist in any investigation is unlawful.

Employers are required to provide each employee with a copy of its policy in writing.

Similarly, an employer that does not adopt the model training developed by the Department of Labor and Division of Human Rights must ensure that the training they use meets or exceeds the certain minimum standards.

Specifically, the training must:

(a) be interactive;

(b) include an explanation of sexual harassment consistent with guidance issued by the New York Department of Labor and provide examples of prohibited conduct;

(c) include information on the federal and state sexual harassment laws and remedies available to victims;

(d) include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and

(e) include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

Each employee must receive training on an annual basis, and the first training must be before October 9, 2019.