New York City and New York State have enacted new laws in 2018 to combat workplace sexual harassment. These new laws mandate employers to, among other things, adopt policies and training on sexual harassment. In recent weeks, as several key dates approach, the state and city have issued guidance, notices and model forms so employers may implement the new requirements.
New York City
Effective May 9, 2018, the “Stop Sexual Harassment in NYC Act” provides that all employers, regardless of size, will be subject to the New York City Human Rights Law’s (NYCHRL) prohibition on gender-based harassment. The city law also mandates anti-sexual harassment trainings for most employers in New York City and requires employers to display a poster and distribute an information sheet on sexual harassment to new employees. Additionally, the law extends the statute of limitations for filing gender-based harassment complaints with the New York City Commission on Human Rights (the Commission) under the NYCHRL from one to three years but retains the three-year statute of limitations for filing a claim in court. Effective April 2019, the law requires that employers with 15 or more employees conduct annual anti-sexual harassment training for all employees and keep a record of all trainings, including a signed employee acknowledgment. Online training modules satisfying this requirement will be forthcoming from the Commission.
Immediate Action Required
As of Sept. 6, 2018, all employers in New York City are required to conspicuously display anti-sexual harassment rights and responsibilities notices in both English AND Spanish. Employers are also required as of Sept. 6, 2018, to distribute a fact sheet to individual new employees at the time of hire. More information is available on the website of the Commission.
New York State
Effective April 12, 2018, the New York State Human Rights Law was amended to protect “non-employees,” including independent contractors. Moreover, effective Oct. 9, 2018, all New York State employers, regardless of size, must adopt a sexual harassment prevention policy, provide annual anti-sexual harassment training to all employees and provide a complaint form for reporting sexual harassment. The state has launched a new website that includes, among other things, draft guidance and models in advance of the deadline, but they are subject to change following a period for public commentary, open through Sept. 12, 2018.
The draft Model Sexual Harassment Prevention Training contains a training script and specifies that the training “must be interactive, meaning it requires some level of participation by those being trained” and include as many of the following elements as possible: be web-based, with questions asked of employees as part of the program; accommodate questions asked by employees; include a live trainer made available during the session to answer questions; and require feedback from employees about the training and the materials presented. Employers that opt not to use the model must offer training that meets the Minimum Standards for Sexual Harassment Prevention Training, many of which mirror the minimum standards applicable to sexual harassment prevention policies, discussed below.
The draft FAQs contain more burdensome training requirements than those enumerated in the law, and may result in compliance challenges for some employers by the imposed deadlines. For example, the FAQs state that employers must provide employees with anti-sexual harassment training by Jan. 1, 2019. Additionally, the FAQs state that new employees must complete the annual anti-sexual harassment training within 30 days of hire.
New York State has also issued a draft model Sexual Harassment Prevention Policy and draft Complaint Form. By law, New York employers must either adopt the finalized version of the model policy or implement a policy that meets or exceeds the Minimum Standards for Sexual Harassment Prevention Policies. The minimum standards require that policies must:
(1) Prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights.
(2) Provide examples of prohibited conduct that would constitute unlawful sexual harassment.
(3) Include information on the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws.
(4) Include a complaint form.
(5) Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties.
(6) Inform employees of their rights to redress and all available forums for adjudicating sexual harassment complaints administratively and judicially.
(7) Clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue.
(8) Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.
Notably, the state’s draft model policy exceeds the minimum standards and suggests, among other things, that employers complete investigations of sexual harassment within 30 days and create written documentation of the investigation; that managers and supervisors be required to report any complaint they receive or harassment they observe; and that the policy include a notice stating that individuals subjected to physical touching, coerced physical confinement or coerced sex acts should contact the local police department.
The draft FAQs also address the portion of the state law, which took effect on July 11, 2018, that prohibits the use of nondisclosure agreements in the resolution of workplace claims of sexual harassment unless the person who complained prefers a nondisclosure agreement. The FAQs lay out a three-step process “that must be followed for memorializing the complainant’s preference”: (1) the term or condition of confidentiality must be provided to all parties, and the person who complained then has 21 days to consider the term or condition; (2) if, after 21 days, the term or condition is the preference of the person who complained, it will be memorialized in an agreement to be signed by all parties; and (3) the person who complained has a seven-day period for revocation following the execution of the agreement, and the agreement does not become final until that period has expired.
Moreover, the draft FAQs specifically state that the parties need to enter into two separate documents to establish the complainant has agreed not to disclose the underlying facts of the harassment claim: (1) an agreement memorializing that a nondisclosure term or provision is the preference of the person who complained, and (2) a separate agreement incorporating that term or provision with any other terms for the resolution of the dispute.
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We recommend at this juncture that employers prepare to update their handbooks and policies and review options for Web-based training to comply with the new laws, but that they refrain from making significant changes pending the outcome of the public commentary period and the issuance of additional guidance. We will continue to monitor the state and city websites for new developments and provide updates.