New York State Workplace Harassment Laws

New York state workplace harassment laws have been witnessing reforms since the advent of the #MeToo movement. There have been substantial changes to laws addressing discrimination, retaliation, and harassment (especially sexual harassment).

Starting in 2018, Governor Cuomo kick-started the push for better and more inclusive workplace environments through the “2018 Women’s Agenda New York: Equal Rights, Equal Opportunity.”

In the same year, the state passed sexual harassment reforms when the governor signed the state budget into law. The new laws touch all work environments within the state. In summary, the changes are as follows:

Independent contractors receive better protection from sexual harassment at the workplace. The changes also affect subcontractors, consultants, vendors, and other parties providing a service in any workplace.
State contractors are required to have a sexual harassment prevention policy and conduct employee training on the same on an annual basis. The law took effect in January 2019.\
All other employers are required to have a sexual harassment policy and conduct employee training. The training must meet or surpass the acceptable standards.
Non-disclosure agreements are prohibited if a sexual harassment claim is resolved in writing unless the employee opts for one. They will then have 21 days to consider the NDA clause and a 7-day period to reconsider their choice once they sign it. This section was enacted on July 11th, 2018
A new measure prohibiting mandatory arbitration clauses affecting sexual harassment claims took effect on July 11th, 2018.

The New York City Council passed its own bills. Although they echoed those passed by the state, they were sterner. The main takeaways are:

Sexual harassment training for all employees
An extension of the statute of limitations that now states that victims of sexual harassment can report the incident as many as three years after it happens (previously one year).
The laws apply to all employers instead of the original coverage of employers with a minimum of four employees.
Employers must place an “anti-sexual harassment rights and responsibilities” poster conspicuously at the workplace and furnish new hires with a handout (in addition to training them) echoing the policy.

2019 Changes to Harassment Laws

Hot on the heels of the 2018 changes, the state’s congress brought in yet more revisions to its workplace laws. While the 2018 measures mainly focused on sexual harassment in the workplace, discrimination, and retaliation feature in the 2019 amendments.

Building on the anti-sexual harassment laws, the following provisions are expected to be enacted:

The coverage of the New York State Workplace Harassment laws will be extended to all employers regardless of the size of staff – even covers domestic workers. The previous changes affected sexual harassment claims but these new ones bring in other workplace claims.
Contractors, subcontractors, consultants, vendors, and other non-employee parties providing services in a workplace will be protected from discrimination and retaliation in the workplace.
Punitive damages will be allowed to deter discrimination, retaliation, and harassment.
The burden of proof will be lower for cases of discrimination, retaliation, and harassment to match City law. This means that employees do not have to prove that harassment involving protected status was severe or pervasive, employees filing for discrimination do not need to prove their claims relative to comparators, and employers cannot use the Faragher/Ellerth defense.
The prevailing party in a case involving the state’s Human Rights Law will be awarded Attorney fees rather than the previous case where the award was discretionary. If the employer prevails, they must prove that the employee’s claims were filed in bad faith.
To deter discrimination, laws will be construed liberally while exceptions to the law will be construed narrowly. This approach will be taken even if it departs from an analogous federal law.
The restrictions like the ones enacted in 2018 to NDAs used to settle sexual harassment complaints will apply to discrimination, retaliation, and harassment claims.
Starting January 1, 2020, NDA clauses in employee contracts related to discrimination claims will have a provision that allows the employee to disclose information pertaining to the matter to law enforcement, the EEOC, the human rights commission, the State’s division of Human Rights, or an attorney.
There will be restrictions to mandatory arbitration clauses for retaliation and harassment claims.
For sexual harassment claims, the statute of limitations of the state will now match the amendment made by the city council; three years rather than the previous one year.
Employers must issue staff members with a notice of the anti-harassment policy as they hire them and during the annual training programs in written form.

New York State Sexual Harassment Prevention Policy and Training

Since training is now mandatory at all workplaces, the State provided guidance as to the requirements that an employer’s anti-harassment training programs must meet or exceed. Employers can craft their own training, use the model program provided by the state, or use a third-party training provider.

The training is to be done when employees are hired and on an annual basis. It should be availed in a language spoken by the employees.

If employers choose to create their own training program or use a third-party training provider, it should meet the following conditions:

It should be interactive; encourage two-way participation.
It has to show examples of workplace conduct that is considered unlawful.
It should define sexual harassment in line with the definition provided by the Department of Labor in conjunction with the Division of Human Rights.
It should guide employees on their rights of redress and the avenues they can use to report sexual harassment.
It should provide guidance on supervisors’ conduct; including extra responsibilities.
Should provide information on state and federal statutory provisions and remedies afforded to victims of harassment.

The training can be conducted by a trainer or online as long as it meets the requirements. Online training has the following advantages:

It can be done remotely
It is relatively cheaper to offer
Employees can do it at their own convenience
It is easier to keep the records of the training

In conclusion, the New York Workplace Harassment laws will help to ensure employees are protected from various types of harassment, including sexual harassment in the workplace. If you’re an employer, it’s important to stay up to date on the new laws and implement their requirements as soon as reasonably possible.