As the summer reaches its peak, New York employers may be more concerned with juggling employee vacation schedules than drafting new policies. But with New York’s recent anti-sexual harassment legislation coming into effect this October, and continuing into the spring for New York City, employers need to begin rolling out new policies and ensuring that training is in place to meet these new standards. This alert provides a brief summary of the new requirements so that employers aren’t left without guidance during the dog days of summer.
New York State
On April 12, 2018, Governor Cuomo signed into law New York State’s newest anti-sexual harassment requirements, which will come into effect on October 9, 2018. For the first time, the state is mandating both a written policy and annual training for all employers.
Written Policy: By October 9, 2018, employers must implement a written anti-sexual harassment policy that should include the following information:
- A statement explaining that the employer strictly prohibits sexual harassment;
- Specific examples of conduct that constitute sexual harassment. We suggest the policy contain several different examples, including examples of “quid pro quo” sexual harassment;
- Information regarding the statutory provisions that prohibit sexual harassment. We recommend including information regarding federal and state statutes, as well as city law for New York City employers;
- An internal complaint procedure that provides how an employee can report incidents of sexual harassment. Employers must also develop a standard complaint form. This will also be a good opportunity for employers to review their complaint policy to ensure it is clearly written and doesn’t create obstacles for employees to report claims;
- Information regarding an employees’ rights of redress if they are the victim of sexual harassment;
- Identification of all available judicial and administrative forums for an employer to file a sexual harassment complaint. This includes the Equal Employment Opportunity Commission (“EEOC”), the New York State Division of Human Rights (“DHR”), and in New York City, the New York City Commission on Human Rights (“CHR”);
- A statement that an employer cannot retaliate against an employee for reporting sexual harassment or assisting in an investigation;
- Employers should also require their employees to sign an acknowledgment form that they have received and reviewed the policy, and these forms should be placed in the employee’s personnel file.
Employers should draft policies that include the information discussed above and prepare to implement the policy by October 9, 2018.
Training: Also beginning on October 9, 2018, employers must provide annual “interactive” training regarding sexual harassment. The timing of the law suggests that employers must finish their first annual training assessment no later than October 9, 2019. The content of the training will mainly follow the topics that employers must put in their policies under the new legislation. The New York Department of Labor and the DHR will release a model training module, and an employer must meet or exceed the training standards in that model. While there is no record-keeping requirement under this law, we recommend employers have all employees sign written acknowledgments and attendance forms.
New York City
For employers operating within the five boroughs with 15 or more employees, effective April 1, 2019, these employers will have to comply with Mayor de Blasio’s Stop Sexual Harassment in New York City Act. Like the New York State legislation, this law requires employers to complete annual employee training on sexual harassment. There is no requirement in this law regarding a written policy.
While largely in line with the training requirements of New York State, the city law touches on some additional topics. The New York City training must include:
- An explanation of sexual harassment and a statement that it is unlawful under the New York City Human Rights Law, as well as state and federal law;
- A description of sexual harassment using examples. The employer should include several examples, including examples of “quid pro quo” harassment;
- An explanation of the employers’ internal complaint policy for sexual harassment complaints. As discussed above, this will be an opportunity for employers to review and revise their internal complaint procedures as necessary;
- An explanation of the complaint process available through administrative forums, such as the EEOC, DHR, and CHR. This explanation must include contact information for these entities;
- Information regarding bystander intervention, including an explanation as to what that concept is, and how to engage in bystander intervention;
- A specific explanation on the responsibilities of managers and supervisors and their role in reporting and preventing sexual harassment, as well as measures that these employees can take to address these complaints;
- A explanation that employers cannot retaliate against an employee for reporting sexual harassment or assisting in an investigation, along with examples to illustrate acts of retaliation.
Employers must administer this training both annually and within 90 days for new hires. Employees who work more than 80 hours in a calendar year must receive training, regardless of whether they are part-time or full-time.
Employers must also obtain signed acknowledgment forms from their employees and maintain those records for three years.
The CHR will release a model training module for employers to review and use. If an employer elects to use their own training module, it should meet or exceed the standards of the CHR’s module.
Additional Legal Requirements
Aside from the training and policy requirements, some other new state and city legislation regarding sexual harassment has come into effect, or will soon. This includes:
- July 11, 2018: Employers cannot require employees to sign mandatory arbitration clauses to resolve allegations or claims of sexual harassment, as this is now prohibited under the New York Civil Practice Law and Rules;
- July 11, 2018: Non-disclosure and confidentiality provisions are now prohibited in settlement agreements regarding sexual harassment claims, unless the employee prefers to have that provision, pursuant to New York’s General Obligation Law.
- September 6, 2018: New York City employers must begin to display and give to all new employees an anti-sexual harassment poster that will be released by the CHR.
What Should You Do?
Employers should take the time now to do the following:
- Review their arbitration agreements to ensure they comply with the new arbitration prohibition;
- Begin the planning process to implement training as required by both laws, as necessary;
- Review and revise internal policies to ensure compliance;
- New York City employers should review their internal work place postings and make plans to display the new anti-sexual harassment poster when released by the CHR.
With all of these new requirements fast approaching, employers should not hesitate to speak with counsel to ensure they are up to date on these new requirements. Kelley Drye’s Labor and Employment team have advocated for the interests of employers for more than 60 years. We provide strategic counseling and comprehensive representation on the full spectrum of workplace and employment issues, including counseling and compliance, training, and litigation.