ALERT: New section 201-g of the New York State Labor Law provides that “sexual harassment prevention training shall be provided to all employees on an annual basis.”
On April 12, 2018, New York became the fourth state in the country to require sexual harassment prevention trainings in joining California, Connecticut and Maine. New York’s requirements extend far beyond the requirements in these other states where New York mandates trainings to be provided by all employers for all employees regardless of number of employees (e.g., trainings only for employers with more than 50 employees as is the case in two of the other states) or job function of trainee (e.g., trainings only for supervisors / managers as is the case in two of the other states).
Additionally, New York City enacted a similar local law on May 9, 2018. The state’s law is effective October 9, 2018 and the first annual training must be completed prior to October 9, 2019. The city’s law is effective April 1, 2019 and the first annual training must be completed within one year of such date.
New York State’s sexual harassment law is by far the most comprehensive in the country. The law has eight major components, including:
1. Annual sexual harassment training for all employees (NYC’s law is applicable to employers with 15 or more employees).
2. New hires should receive policy prior to commencing work, trainings as soon as possible and the employer has liability for employee’s actions immediately upon hire (NYC’s law is within 90 days).
3. Sexual harassment policy to be provided in writing (NYC’s law requires signed employee acknowledgement of receipt of the policy plus it also requires a poster to be displayed and an information sheet to be provided to new hires).
4. A ban on confidentiality agreements in settling sexual harassment claims.
5. A prohibition on mandatory arbitration clauses concerning sexual harassment claims.
6. An ability for governmental units to recover payments made to victims for adjudicated sexual harassment from responsible officers / employees.
7. A swearing requirement by government bidders for competitive bids (both in-state and out-of-state bidders) concerning compliance with the policy and training requirements.
8. New exposure for companies concerning sexual harassment committed by and against independent contractors at their place of business.
Make no mistake, this law matters and will change the face of industry in New York State. According to Speaker Heastie of the New York State Assembly, “[t]he ongoing culture of sexual harassment in the workplace has been a great disservice to hardworking families, especially women… [t]hat is why the Assembly Majority made it a priority to include measures in this budget that take much-needed first steps towards empowering victims of harassment and holding bad actors accountable.”
Beyond protecting victims, this law further matters because failure to comply is chargeable as a misdemeanor pursuant to Section 213 of the New York State Labor Law. Further, it is anticipated that a court could find the terms of an Employment Practices Liability Insurance policy (EPLI) breached if the training and policy have not been undertaken with proper recordkeeping. Should a court make such a finding, it is anticipated that insurance companies will all disclaim coverage on this ground for indemnity claims concerning sexual harassment lawsuits.
The good news is that trainings and anti-sexual harassment policies can be made available online and on-demand, per the law, so long as the compliance vendor provides content that is interactive. In this way, employers can maintain a digital date and timestamp record of compliance to satisfy a Department of Labor audit or as evidence in defending a sexual harassment claim.
More importantly, employers should utilize a vendor with online and on-demand offerings so that they can comply with the “as soon as possible” training requirement (NYC’s “within 90 days” requirement) without being hurt by the exponential variable costs that would otherwise result from offering continuous in-person new hire trainings for only a minimal number of trainees. Still further, employers can easily utilize click-wrap where employees can affirmatively agree to the harassment policy, which can be provided in writing to the employee, and can be utilized as evidence in defending a sexual harassment claim.
Finally, employers can tailor trainings to meet their specific needs, such as including the identification of an internal investigator, providing an internal complaint form and branding the training to the business. In this way, an employer can leverage compliance to increase employee job satisfaction and retention.
Disclaimer – Andrew Lieb is a principal at Lieb Compliance, LLC, which offers sexual harassment trainings onsite, on-demand and at its training center located at 308 W. Main Street, Smithtown New York 11787.