New York City Enacts a Suite of Regulations to Combat Sexual Harassment in the Workplace; Mandatory Class Action Waivers in Arbitration Agreements are Enforceable

June 2018

Mayor de Blasio Signs the Stop Sexual Harassment in NYC Act

As explained in our update on April 18, the Stop Sexual Harassment in NYC Act (the “Act”) was passed by the New York City Council on April 11, 2018 and was awaiting Mayor de Blasio’s signature. Mayor de Blasio has now signed the Act, which ushers in a host of additional prohibitions on workplace sexual harassment in addition to those signed into law by Governor Cuomo. Importantly, the Act imposes separate requirements for New York City employers to provide employees with sexual harassment training, in addition to the sexual harassment training required under New York State law.

Several provisions of the Act are effective immediately. Those provisions include:

  1. extending the statute of limitations for filing an administrative charge alleging gender-based harassment claims under the New York City Human Rights Law (“NYCHRL”) with the New York City Commission on Human Rights from one to three years from the date the alleged harassment occurred;
  2.  amending the NYCHRL’s prohibition on gender-based harassment to apply to all employers, regardless of the company’s size; and
  3. clarifying that sexual harassment is a form of discrimination under the NYCHRL.

Effective September 6, 2018, New York City employers must display an “Anti-Harassment Rights and Responsibilities” poster that will be designed by the NYCHRL. That poster has not yet been made available, but is expected to be available for download on the NYCHRL’s website prior to the date it is to be posted.

Also effective September 6, 2018, New York City employers must provide all new hires with an information sheet on sexual harassment. This sheet will also be designed by the NYCHRL, and may be included in the employer’s handbook.

In addition to the above provisions, effective April 1, 2019, all private employers with 15 or more employees will be required to conduct annual sexual harassment prevention trainings for all employees and interns. Further, all new employees and interns expected to work more than 80 hours in a calendar year must complete sexual harassment prevention training within 90 days of hire. Employers will be required to keep training records and signed acknowledgments from employees for three years.

Crucially, employers who are required to provide training under the Act and New York State’s new training requirements may provide a single training to their employees, so long as the training meets the minimum standards set forth by the Act. Because New York State’s training requirement is effective as of October 9, 2018, employers should start thinking now about when it makes sense to provide trainings given the effective date of the Act and New York State’s requirement, and how many trainings the employer will need to provide given the size of their workforce.

While the Act’s training requirements may seem overwhelming, the Act has two provisions that may slightly lessen the burden on employers. First, the NYCHRC is required to promulgate an interactive, online training module that employers may use to comply with the Act, as long as the employer also provides employees with information concerning internal reporting procedures. Second, The Act provides that if a new hire has already received training during the current “cycle” (a term which is undefined in the Act but presumably refers to a calendar year), the employer does not need to provide an additional training until the following year.

What Should You do to Ensure Compliance?

The biggest and most arduous change to come out of the Act is the increased requirements to provide sexual harassment training to all eligible employees. This provision of the Act will impose increased record-keeping requirements, and employers will need to make sure that they: (1) are prepared to provide trainings that comply with New York State and City law; and (2) are prepared for the logistics that will go into ensuring that all employees who need to receive training get it, and keeping a record of those who receive it.

While the Act’s training provisions do not go into effect until April 1, 2019, employers should consult with their employment counsel now to ensure that they have a plan in place to provide compliant trainings under both State and City law, while ensuring that they maintain adequate records.

Mandatory Class Action Waivers in Arbitration Agreements are Enforceable

Earlier this month, the United States Supreme Court held, in a landmark decision, that employers can enforce class action waivers in arbitration agreements. While the decision in Epic Systems Corp. v. Lewis (“Epic Systems”) is notable for all employers, it is particularly relevant for those employers who face potential class action liability under the Fair Labor Standards Act (“FLSA”) for wage and hour claims. As a result of the Epic Systems decision, and in light of New York State’s forthcoming ban on mandatory arbitration for claims of sexual harassment (effective July 11, 2018), now is the time for employers to review and update their arbitration policies.

However, the decision to adopt a mandatory class-waiver (if the employer already provides for dispute resolution via arbitration) or adopt a new policy requiring arbitration with a class waiver is an employer-specific decision, particularly because  employers who are unlikely to face class action liability are unlikely to derive much value from a class action waiver. As such, we strongly recommend that employers consult with their employment counsel about whether to change their dispute resolution policies in the wake of Epic Systems.

Reminder: New York Earned Sick Time Act Now Includes Safe Leave

Effective May 5, 2018, the New York Earned Sick Time Act allows employees to use accrued sick leave when the employee or a family member is the victim of a family offense matter, sexual offense, stalking or human trafficking. Employers must also distribute an updated New York Sick Leave Notice, which can be found here, and must update their existing leave policies to comply with the new “Safe Leave” requirements. Employers with questions about the New York Earned Sick Time should reach out to their employment counsel to ensure that they are complying with these new requirements.

For more information on this issue or other employment matters, please contact:

Carol M. Goodman at [email protected] or +1 212 592 1465

© 2018 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.