New York Employment Law Update: Key Provisions of New York’s Sexual Harassment Laws to Take Effect in Fall 2018

August 2018

Our past employment alerts have analyzed the suite of anti-harassment laws enacted by Governor Cuomo and Mayor de Blasio this past Spring. In the coming weeks, many of those laws will become effective, and the time is now for employers to comply.  

New Poster and Fact Sheet Requirements

Effective September 6, 2018, all New York City employers must conspicuously display in the workplace this anti-sexual harassment rights and responsibilities poster, and must provide this anti-sexual harassment fact sheet to all new hires.

Employers Must Conduct Annual Sexual Harassment Training

Effective October 9, 2018, all employers must provide interactive sexual harassment training to their employees on an annual basis. To be clear, this is only the beginning of the compliance period, and employers will have a one-year window to provide compliant training. The New York State Department of Labor (“DOL”) and New York Division of Human Rights (“DHR”) are tasked with creating and publishing a model sexual harassment training program that employers may use to comply with the law.

Further, effective April 1, 2019, New York City-area employers with 15 or more employees are required to provide annual interactive sexual harassment prevention training to all employees, and all new employees within 90 days of hire. While the New York City Human Rights Law (“NYCHRL”) imposes similar requirements as those under the New York State law, there are certain important differences (including the NYCHRL requirement on bystander intervention training that is absent from the state law).

As such, employers should review and coordinate the content and timing of their training with New York State’s sexual harassment training requirements, because employers may fulfill their obligations under both laws by conducting a single training that complies with both the City and State requirements.

Sexual Harassment Policies Are Now Required

Effective October 9, 2018, all employers must either adopt the DOL and DHR’s model sexual harassment prevention policy or develop their own policy that complies with the model policy’s standards. While the DOL and DHR have not yet released their model policy, employers can begin revising their own sexual harassment prevention policies to include the following elements required under the law:  (1) a statement prohibiting sexual harassment; (2) examples of prohibited conduct; (3) information concerning state and federal statutory provisions concerning sexual harassment and remedies available to victims (and a notice that additional remedies may be available under local law); (4) a standard complaint form; (5) the procedure for the timely and confidential investigation of complaints; (6) all available administrative and judicial forums in which to raise sexual harassment claims; (7) a statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals engaging in sexual harassment and managers and supervisory personnel who knowingly allow such behavior to continue; and (8) a statement that retaliation against individuals reporting sexual harassment, or who testify or assist in any proceeding is unlawful.

Now is the time for employers to either revise their existing policy or implement a policy that complies with all of the new requirements.

New York City Employers Must Engage in “Cooperative Dialogue” For Workplace Accommodations

Effective October 15, 2018, New York City employees with four or more employees will be required to engage in a “cooperative dialogue” with an employee who seeks a workplace accommodation under Int. No 804-A (the “Bill”). The need for a cooperative dialogue – which is similar to the “interactive process” required by the federal Americans with Disabilities Act (“ADA”) – is triggered upon the employee’s request for an accommodation, or if the employer is on notice that the employee may require an accommodation.

Specifically, the Bill requires a cooperative dialogue for accommodations related to: (1) religious needs; (2) disability; (3) pregnancy, childbirth and related medical conditions; and (4) the needs of a victim of domestic violence, sex offenses or stalking. The required cooperative dialogue surrounding the request for an accommodation may be written or oral, and encompass good faith communications concerning the employee’s accommodation needs, possible accommodations to meet those needs, and/or difficulties the proposed accommodations may create for the employer.

While the cooperative dialogue may be verbal, the employer’s decision to grant or deny the accommodation must be in writing. Importantly, any determination granting or denying an accommodation may only be made after the parties have engaged in a cooperative dialogue.

Failure to engage in a required cooperative dialogue is an unlawful discriminatory practice under the New York City Human Rights Law, and may subject an employer to penalties of up to $250,000 for a willful violation of the law. Accordingly, employers should examine and update their reasonable accommodation policies, and train HR professionals and managers on this new cooperative dialogue requirement (including the requirement to document the ultimate decision) to reduce the risk of a civil penalty.

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 information is provided to keep clients and interested parties informed of legal developments that may affect or interest them. The information is not intended as legal advice or legal opinion and should not be construed as such.