What You Need to Know About New York’s Anti-Harassment Legislation

New York adds some surprises to workplace anti-harassment training


On April 12th, New York Governor Andrew Cuomo signed the New York state budget. Buried near the back of the 95-page document are pages of new workplace anti-harassment requirements. On May 9th, New York City Mayor de Blasio signed 11 (!) anti-harassment bills.

The big surprise: these are not the California and Connecticut rules, tweaked; it’s a fresh approach.
 
Five Highlights

Everyone gets trained. That’s clearly a break from the California template, where the target population is those with supervisory responsibilities in organizations with 50 or more people. New York state stipulates every employer, and every employee. Parts of New York City legislation state every employee, but the training requirement for private sector employers states “employers with 15 or more employees.”

Training shall be annual. This is an improvement on California and Connecticut’s two hours every two years approach.

The importance of bystander intervention. New York City’s training requirements specifically require educating employees on the power of bystander intervention. A few years ago forward thinking HR professionals began calling for the bystander intervention programs that were flourishing on campuses to be brought in to workplaces. New York City’s made it official; the importance of bystander intervention and how to intervene safely is a required component of the annual training.


Training will be provided.
That’s right; the government’s mandating training, but they’re providing, at no cost, a basic online class that will allow employers to check the box, proving that they’ve done the minimum required.

Training Requirements – the Specifics

While a number of the requirements are similar, here is the exact language of the law:

New York State Budget, part KK, Subpart E, section 2 § 2. This act shall take effect on the 180th day after it shall have become a law. (That works out to be Oct 9, 2018.)

a. Such model sexual harassment prevention training program shall be interactive and include:

(i) an explanation of sexual harassment consistent with guidance issued by the department in consultation with the division of human rights;
(ii) examples of conduct that would constitute unlawful sexual harassment;
(iii) information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment; and
(iv) information concerning employees' rights of redress and all available forums for adjudicating complaints.

b. The department shall include information in such model sexual harassment prevention training program addressing conduct by supervisors and any additional responsibilities for such supervisors.

c. Every employer shall utilize the model sexual harassment prevention training program pursuant to this subdivision or establish a training program for employees to prevent sexual harassment that equals or exceeds the minimum standards provided by such model training. Such sexual harassment prevention training shall be provided to all employees on an annual basis.


NEW YORK CITY COUNCIL, Int. No. 632-A FINAL. § 2. This local law takes effect April 1, 2019.

Such training shall include, but need not be limited to, the following:

(1) An explanation of sexual harassment as a form of unlawful discrimination under local law;
(2) A statement that sexual harassment is also a form of unlawful discrimination under state and federal law;
(3) A description of what sexual harassment is, using examples;
(4) Any internal complaint process available to employees through their employer to address sexual harassment claims;
(5) The complaint process available through the commission, the division of human rights and the United States equal employment opportunity commission, including contact information;
(6) The prohibition of retaliation, pursuant to subdivision 7 of section 8-107, and examples thereof; and
(7) Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention.
(8) 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 Rest of the Rules


New York State
The portion of the state budget of interest is PART KK. The state legislation is presented in 6 sections, subparts A thru F. Here’s an overview:

Subpart A – Bidders for state contracts must have their own sexual harassment prevention program in place.
Subpart B – Mandatory arbitration of sexual harassment claims is no longer allowed.
Subpart C – Public sector employees found liable for harassment shall reimburse their agency for any awards paid to the victim.
Subpart D – No more non-disclosure provisions in sexual harassment settlements.
Subpart E – Employers shall have a sexual harassment prevention policy and all employees shall take annual training.
Subpart F – Effective immediately, it’s unlawful for an employer to permit the harassment of non-employees at the workplace.

New York City
As mentioned, New York City passed 11 regs in one day. Here they are:

612-A Details the anti-harassment training requirements for city agencies.
613-A The city shall assess harassment risk factors within city agencies.
614-A The city shall post resources about sexual harassment on its website.
630-A Requires all employers to display an anti-sexual harassment poster that the city will create.
632-A Details the anti-harassment training requirements for private sector employers.
653-A Requires all city agencies to report annually the number of complaints filed, resolved, etc.
657-A Amends NYC Human Rights Law to apply provisions related to gender-based discrimination to all employers, regardless of the number of employees.
657-A Amends NYC Human Rights Law to apply provisions related to gender-based discrimination to all
660-A Amends the policy statement of the NYC Human Rights Law to include sexual harassment as a form of discrimination that the organization shall have the power to eliminate.
663-A Amends the NYC Human Rights Law to increase the statute of limitations for filing gender-based harassment claims from one to three years from the time that the alleged harassment occurred.
693 Requires that contractors /subcontractors for city contracts submit employment reports that include their policies and procedures to prevent sexual harassment.

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A lot of information here, and different rules will matter to different organizations. We think that the most interesting developments are state rules Subpart B – no mandatory arbitration and Subpart D – no more non-disclosure provisions. Subpart D’s actually not this cut and dry; there’s some small print, and there’s a sense that the state doesn’t actually have the authority to override all mandatory arbitration agreements. Within the New York City set, the increase in the statute of limitations is something that will likely gain traction in other jurisdictions.


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