By Harvey S. Mars, Esq. (legal counsel to the UAFP)
An earlier version of this article first appeared in the October 2019 issue of Allegro, the magazine of the NYC musicians’ union Local 802.
New legislation in New York extends the reach of both the remedies and the protections afforded to workers in New York City and New York State who have suffered sexual harassment on the job. Earlier this year, Mayor Bill de Blasio signed into law a package of legislation known as the “Stop Sexual Harassment in NYC Act” (Local Laws 95 and 96), which extends the legal protections afforded to employees far beyond what is available in other states. This progressive law became effective on Sept. 6.
While some of this legislation is geared towards public sector employees and employer reporting requirements, significant portions address private sector workers. Every adjunct professor and instructor should study up on this new legislation and learn how it can reduce sexual harassment in the workplace.
Under the new laws, all NYC employers will be required to prominently display a poster developed by the New York City Commission on Human Rights that reviews and highlights what sexual harassment is, what legal remedies there are for it and how an affected employee may pursue those remedies. The poster is required to be displayed in common work areas in both English and Spanish. (It is available for download by clicking HERE.) Further, New York City employers are now required to distribute to all employees a fact sheet detailing the new law, which parallels the information contained in the poster.
The new laws also require employers who have 15 or more employees (including interns, supervisors and managerial employees) as of April 1, 2019 to conduct annual anti-sexual harassment training. The training must cover topics such as the definition of sexual harassment and how to bring a sexual harassment complaint both internally and through administrative agencies such as the NYC Commission on Human Rights. While this training is meant to be interactive, it need not be conducted in person by a live instructor. The commission is currently developing an online version. The training must be conducted on an annual basis for current employees. New employees who work 80 hours a year on a full or part-time basis in New York City must receive training within the first 90 days of their employment. Employers are required to obtain from each employee a signed acknowledgement that they attended the training. This acknowledgement may be provided electronically. Employers will also be required to maintain documentation and records related to the trainings they have conducted.
Since adjunct professors and instructors are considered exempt professional employees under the Fair Labor Standards Act, under most circumstances the training is not considered compensable time. Nonetheless, all employees only have to take the training once for one employer. Pace has indicated that certification from one employer will be sufficient for any other employer for which that employee works.
Finally, the law amends the New York City Human Rights Law to permit claims of gender-based harassment by all employees regardless of how many employees their employer has. Prior to the amendment, the law did not apply to employers that employed less than five employees. The law also extends the statute of limitations for claims of sexual harassment to three years (from the previous one year).
New York State has added a provision to the New York State Human Rights Law prohibiting sexual harassment of non-employees in the workplace, meaning that state law will now prohibit discrimination (including sexual harassment) against “contractors, subcontractors, vendors, consultants or other persons providing services pursuant to a contract in the workplace-or an employee of any of these.” Furthermore, as of July 11, New York State prohibits settling sexual harassment cases with non-disclosure agreements (agreements that require the terms and existence of a settlement to be held in confidence) unless the claimant affirmatively prefers non-disclosure.
This new legislation places New York far ahead of other municipalities in its effort to eradicate workplace sexual harassment. It serves as a welcome addition to the panoply of other progressive legislation that New York has sponsored and brought to fruition.
Harvey Mars is counsel to the UAFP as well as AFM Locals 802. 16-248 and 443. Legal questions from members are welcome. E-mail them to HsmLaborLaw@HarveyMarsAttorney.com. Harvey Mars’s previous articles in this series are archived at www.HarveyMarsAttorney.com. (Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.)