New York City Employers Must Review Anti-Harassment Programs

Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act on May 9

By Mark Goldstein May 14, 2018
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You have likely heard your external, or perhaps even your in-house, employment counsel suggest on occasion that your company conduct an audit of its workplace policies, practices and procedures. But you have a business to run, and auditing your policies for what may be peripheral updates is simply not high on your seemingly endless to-do list. This is something that employment lawyers hear all too frequently. For New York City businesses, however, this mentality will need to change—and fast. 

Thanks to a suite of bills recently signed into law by Mayor Bill de Blasio in the wake of the #MeToo movement, Big Apple employers have no choice but to review and likely revamp their employment policies, practices and procedures over the next few months, if not sooner.

Here are the key components of these sweeping employment law reforms, as well as the steps that businesses can take to comply.

Training

It was virtually inevitable that the New York City Council—one of the most employee-friendly legislative bodies in the country—would pivot its focus to the recent groundswell of high-profile sexual harassment allegations. 

The council did just that earlier this year, when it introduced an assemblage of 11 bills to redress workplace sexual harassment. This legislative package, dubbed the Stop Sexual Harassment in NYC Act, was passed by the City Council in April and signed into law May 9 by Mayor de Blasio.

Perhaps most notably, the act requires New York City employers with 15 or more employees to provide annual interactive training to prevent sexual harassment for all employees, including interns and supervisory and managerial employees.

[SHRM Online HR Q&A: What are the different types of sexual harassment?]

Such training is also required for new employees within 90 days of hire (however, an employee who has received sexual-harassment training at one employer within the required training cycle does not need to receive additional training at another employer until the next cycle).

The act defines "interactive training" as "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."  While such training need not be presented live or facilitated by an in-person instructor, it must nevertheless include, at a minimum:

  • An explanation of sexual harassment as a form of unlawful discrimination under city law.
  • A statement that sexual harassment is also a form of unlawful discrimination under state and federal law.
  • A description of what sexual harassment is, providing examples.
  • Any internal complaint process available to employees to address sexual-harassment claims.
  • An explanation of the complaint process available through the New York City Commission on Human Rights (NYCCHR), the New York State Division of Human Rights and the U.S. Equal Employment Opportunity Commission, and the contact information for such agencies.
  • A statement that retaliation is prohibited and examples of retaliation.
  • Information concerning bystander intervention, including any resources that explain how to engage in bystander intervention.
  • A statement on the specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation and measures that such employees may take to appropriately address sexual-harassment complaints.

The act requires the NYCCHR to develop a model interactive training module that employers may use to satisfy their obligations under the law. As an alternative, New York City employers may establish their own interactive training programs as long as they meet or exceed the minimum standards to be set by the NYCCHR.

Additional Requirements

The new law also contains some cumbersome provisions intended to remediate sexual harassment in the workplace. Bill number 630-A, for instance, requires that every employer display an anti-sexual-harassment rights and responsibilities poster to be designed and made available by the NYCCHR in employee break rooms or other common areas where employees gather. Every employer must, at a minimum, display this poster in English and Spanish.

The act also compels the NYCCHR to develop an information sheet on sexual harassment that employers must furnish to employees at the time of hire (although the information sheet may be included in an employee handbook). The information sheet will be made available in English and Spanish and any other language deemed appropriate by the NYCCHR.

Additionally, the act expands the scope of employers that may be subject to a sexual-harassment claim under the city's anti-discrimination law. Specifically, bill number 657-A permits employees of all city employers—irrespective of size—to assert a "claim of gender-based harassment" (thereby reconciling city law with an analogous state law enacted in 2016). Previously, such claims could be pursued against only businesses with four or more employees.

The act also mandates that all city contractors include their practices, policies and procedures related to preventing and addressing sexual harassment as part of employment reports required by city contractors. The act also extends the statute of limitations to file a sexual-harassment complaint with the NYCCHR from one year to three years.

Outside of the requirement to provide annual training to prevent sexual harassment, which takes effect April 1, 2019, most of the act's requirements take effect at various intervals over the next few months.

HR's Role

The act, in conjunction with several sexual-harassment-related state bills that were signed into law by Gov. Andrew Cuomo on April 12, will require virtually every New York employer—even those with robust anti-harassment policies and training programs—to review and revise their workplace policies, practices and procedures. For now, Big Apple businesses should:

  • Review their harassment training programs to determine whether they contain all the information required by the act (and conduct a supplemental review once the NYCCHR publishes model training modules).
  • Prominently display the anti-sexual-harassment poster to be published by the NYCCHR.
  • Update their new-hire documentation to include the sexual harassment information sheet to be published by the NYCCHR.

In light of the recent changes at both the state and city levels, the time is also right to review and revise anti-harassment policies. They should include reporting procedures, illustrative examples of impermissible harassment and investigation protocol. 

Indeed, given the relatively short time frame employers have to achieve compliance with the broad new requirements levied by New York lawmakers, it is more crucial than ever that employers stay in regular contact with experienced employment law counsel. 

Mark Goldstein is an attorney with Reed Smith in New York City.


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