By: Amy Epstein Gluck

Today is the day for New York employers! What day, you might ask? Well, today New York’s brand spankin’ new sexual harassment laws become effective.

Will there be a parade down 6th Avenue and 34th Street? I think not.

In fact, I expect there will be relatively little fanfare as New York businesses have been hard at work preparing for this day since the beginning of the year.

I told you here, in May, that as of October 2018, and the actual date is today October 9, 2018, all New York employers must

(1) adopt a policy that meets or exceeds the State model sexual harassment policy’s standards;

(2) distribute that written policy to its employees; and

(3) implement an annual training program that meets the model training program’s standards, which addresses anti-harassment laws, remedies, complaint and investigation procedures, and the additional obligations imposed on supervisory employees to address sexual harassment.

Independent Contractors Are Included!

Moreover, the new state law prohibits sexual harassment committed against independent contractors or subcontractors, where it can be shown that the employer (a) knew or should have known about the harassment but did nothing about it, and (b) has sufficient control and “legal responsibility” over the harasser’s conduct.

Providing independent contractors with rights and remedies if sexually harassed is MAJOR for many reasons namely because the federal anti-discrimination and anti-harassment law, Title VII of the Civil Rights Act of 1964 (“Title VII”), only protects employees against sexual harassment. So, until now, complainants who are independent contractors have had no recourse to either federal law, certainly, but also to the New York Human Rights Law, which tracks the federal law prohibition of unlawful harassment against employees.

Second, though, I told you here, and my partner Eric Meyer told you here, about the perils of #misclassification, i.e., misclassifying folks as independent contractors when they are really employees. I don’t think that, generally, this is done intentionally to evade the reach of Title VII, but with sexual harassment claims on the rise at the federal level (see my quick post here about workplace harassment claims up by 12% for FY 2018), they very well may continue their ascension in New York simply because more individuals have rights subject to redress under state law.

So where are we today?

In addition to the three requirements listed above, including adoption of a policy that meets minimum standards, employers must take additional steps…a lot of steps. Here is the to-do list for New York employers:

  1. Specifically prohibit sexual harassment consistent with State guidance;
  2. Said policy must include examples of prohibited conduct that would constitute unlawful sexual harassment. Like what? Oh, say, like sexual innuendo; sex-based jokes (maybe keep the “that’s what she said” out of the workplace); sending or requesting nude photos (this is more common than you think); asking about another employee’s sex life; leering; asking someone out when they’ve already said “no” five times – you get the idea;
  3. Employers must provide information concerning federal and state sexual harassment law and remedies available to victims of sexual harassment as well as a statement that there may be applicable local laws;
  4. Include a form complaint (the state government provides a “model” form) for targets of sexual harassment to use to report sexual harassment—most employers are not too keen on this aspect;
  5. Include a procedure for the investigation of complaints;
  6. Inform employees of their rights and how sexual harassment complaints can be filed administratively and in court;
  7. Clearly state that sexual harassment is considered a form of employee misconduct, which will warrant discipline if found upon investigation, including against supervisors or managers who knew about such misconduct but did nothing to stop it;
  8. Training by October 2019; and
  9. Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding involving sexual harassment is unlawful. Employers want to include exactly what “retaliation” means, too, and, I’d say, give some examples of retaliatory behavior. For example, retaliation may be direct like demoting or terminating a person who reports, or it can consist of more subtle behavior, like increased work load or or being cut out of meetings or projects.

There’s a poster, a toolkit, a training model, and, of course, a FAQs section to help NY employers meet their statutory obligations.

The new law works in tandem with the Stop Sexual Harassment Act, which NYC employers must comply with as well.

Recommendations

So, what are your next steps, of course, in addition to the above?

  • Circulate the NYC-mandated fact sheet to all new employees during the hiring process;
  • Post the required posters in conspicuous areas within your workplace;
  • Update (and likely expand the scope of) your employee handbooks and policies, and review options for training; and
  • Of course, hit me up if you have any questions.

New York, are you ready? Make your list, and check it twice!