Complying With New York’s Updated Anti-Sexual Harassment Laws

The #MeToo and Time’s Up movements have shifted the paradigm in organizations across the country. Instead of turning a blind eye toward bad behavior, all employees in an organization must be on alert for sexual harassment in the workplace. Taking proactive action toward sexual harassment and other bad behavior will create a healthier working environment, where employees can focus on their jobs rather than wondering whether a pattern of harassment will continue.

Ultimately, managers hold many important roles. Some critical roles include (1) ensuring that employees are working in a safe workplace and (2) doing their part to ensure compliance with local, state, and federal law.

The intersection of these two roles brings forth a variety of issues, including compliance with anti-sexual harassment laws. If you are a manager of a business or other organization in New York, you will need to—at the very least—comply with new anti-sexual harassment laws within New York State. If your organization is in New York City, you will also need to comply with another set of laws underneath the Stop Sexual Harassment in NYC Act.

So what does this mean? What do you need to know to ensure that you are complying with these new laws?

New Legislation

In the wake of the #MeToo and Time’s Up movements, both New York City and New York State have enacted new legislation to combat sexual harassment in the workplace.

Let’s start with New York State. On April 12, 2018, New York Governor Andrew Cuomo signed into law the 2019 New York State Budget, which ultimately updated the sexual harassment laws within the state.

There are three major changes.

First, the New York Human Rights Law now protects certain individuals (like contractors, subcontractors, vendors, consultants, and others) from sexual harassment in the workplace. That means that your organization now has a responsibility to protect these non-employees from sexual harassment.

Next, New York State requires a model sexual harassment policy and training for all employers. Specifically, beginning in October 2018, employers are required to adopt a sexual harassment prevention policy and training or use a similar policy and training that at least meets the law’s minimum standards.

Finally, starting in January 2019, all state contractors need to submit an affirmation that they have a sexual harassment policy and that they have trained all of their employees. Non-disclosure agreements can only be used when the condition of the confidentiality is the explicit preference of the victim.

For more details about the changes, including a list of FAQs, you can click here, which is the New York State government’s website on combating sexual harassment in the workplace.

In New York City, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act, which is a collection of laws that are designed to address and prevent sexual harassment in the workplace.

Among the most prominent effects include compulsory anti-sexual harassment training (both in the public and private sectors), increased available information about sexual harassment so New Yorkers know their rights, required sexual harassment data reporting from city agencies, and the expansion of sexual harassment protections under New York City’s Human Rights Law. This expansion of the Human Rights Law includes a lengthening of the statute of limitations (from one to three years) in cases of gender-based harassment, regardless of the size of the employer.

The changes are fairly comprehensive and you will likely want to consult your in-house attorney to ensure that you are complying with the new laws.

Training Requirements

The new legislation can be complex, yet it is critical to note the anti-harassment training requirements for both public and private entities. As a manager, it is your responsibility to ensure that your organization is hosting the appropriate training per New York City and New York State laws. To reiterate, it is critical to contact your in-house lawyer to determine whether you are in full compliance.

That said, let’s start with the training requirements instituted by the updated New York State law. Under state law, every employer must provide anti-sexual harassment training and a written anti-harassment policy to all employees starting in October of this year. The actual training delivered can be the model training developed by the New York Department of Labor and Division of Human Rights or your own organization’s training that meets certain minimum standards.

You can find a full list of those standards here. As an example, the training must be interactive, must include examples of conduct that would constitute unlawful sexual harassment, and must include information addressing conduct by supervisors and any additional responsibilities for supervisors. “Interactive” training means that the training may be web-based with questions asked of employees, accommodate employee questions, include a live trainer to answer questions during the session, and/or require feedback from employees about the training and materials presented. Starting on October 9, 2018, each employee must start receiving training on an annual basis. That training must be completed by January 1, 2019, and for every year thereafter.

Unlike New York City’s law, New York State does not require employers to track employees’ attendance at trainings. That said, it still would be wise to do so, as your organization will have a record should a complaint—or potentially litigation—arise.

If your organization is located in New York City, you will also have to comply with training requirements under the Stop Sexual Harassment in NYC Act. Compared to New York State law, however, New York City’s annual anti-sexual harassment training requirement only applies to employers with 15 or more employees. Effective in April 2019, employers have one year to implement the training and ensure that all employees receive subsequent annual trainings. Don’t forget, though, that while the training requirement applies to organizations with 15 or more employees, your organization—regardless of the size—still must protect all employees, interns, and relevant non-employees from sexual harassment.

As for the actual training required, employers have two options—similar to New York State law. First, they can use the training provided by the New York City Commission on Human Rights. This training will be available on the Commission’s website in the coming months. The other option is for employers to provide their own anti-sexual harassment training. That said, employers’ training must include several elements, including an explanation of sexual harassment as a form of unlawful discrimination under local law, a description of what sexual harassment is (using examples), and an internal complaint process available to employees through their employer to address any sexual harassment claims. The full list of required elements can be found here.

Critically, under the Stop Sexual Harassment in NYC Act, employers must keep records of all trainings. These records need to include signed employee acknowledgments indicating that they attended the training. These records can be kept in paper or electronic form.

Do Your Diligence

All managers are strapped for time. We have one million things to do and little time to do them. Having said that, if your business or organization is located in New York, you must spend some time ensuring that, at a minimum, you are complying with New York State’s new laws on sexual harassment. While you will want to contact your organization’s attorney with any specific questions, ensuring that you have an adequate training program will go far in fulfilling your compliance duties.

TrainingABC has two new courses that cover the requirements for these new laws - Sexual Harassment Prevention in New York and Sexual Harassment Prevention in New York for Managers.