Earlier this year, Gov. Cuomo signed into law the 2018-2019 New York State Budget, which included new requirements for both private and government employers intended to combat sexual harassment in the workplace.

As reported in our previous post, the new law mandates that starting October 9, 2018, all New York employers must adopt a sexual harassment prevention policy and provide sexual harassment prevention training to employees. Both the policy and training must meet or exceed minimum standards set by the New York State Department of Labor together with the New York State Division of Human of Rights (collectively hereinafter, “New York state” or “the state”). Employers must provide sexual harassment prevention training to all current employees by January 1, 2019. Additionally, employers who are state contractors must submit an affirmation to New York state confirming that they have distributed the requisite sexual harassment prevention policy and provided the necessary training.

Last week, New York state released draft guidance for employers to comply with these new requirements. Specifically, the state released 1) a model sexual harassment policy for employers, 2) a model complaint form for employees to report sexual harassment, 3) a model sexual harassment prevention training program and 4) FAQs for employers regarding the new law. Each of these documents, including the FAQs, is in proposed form and in a public comment period until September 12, 2018.

Additionally, the state has created a new website as a resource to help both employees and employers in New York to understand the new sexual harassment law. A link to the website can be found here. In addition to copies of the model documents, the website also contains “proposed minimum standards” for employers that decide to not adopt the state’s model policies and instead want to tailor their current policies to meet the new law’s minimum requirements.

Below is a summary of the key provisions of the model sexual harassment prevention training guide and model sexual harassment prevention policy released by New York state.

Model Sexual Harassment Prevention Training Guide

To assist employers with establishing a sexual harassment prevention policy, New York state has released a 24-page model training guide. The guide includes instructions for employers, a minimum training standards checklist, a script for providing employees with sexual harassment prevention training and a section of sexual harassment case studies, which includes hypothetical sexual harassment scenarios.

The introductory pages of the guide explain that an employer’s sexual harassment prevention training must be interactive and include as many of the following four elements as possible: 1) be web-based, with questions asked of employees as part of the program, 2) accommodate questions asked by employees, 3) include a live trainer made available during the session to answer questions and 4) require feedback from employees about the training and the materials presented.

Employers are not required to adopt New York’s model training guide. Employers that decide to not use the guide must tailor their current training to meet or exceed the state’s minimum standards. These minimum standards require that the sexual harassment prevention training:

  • Be interactive;
  • Include an explanation of sexual harassment consistent with guidance issued by the state;
  • Include examples of conduct that would constitute unlawful sexual harassment;
  • Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
  • Include information concerning employees’ rights of redress and all available forums for adjudicating complaints;
  • Include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

Regardless of whether an employer adopts New York state’s model training guide, all employers must provide employees with sexual harassment prevention training that meets the state’s minimum standards by January 1, 2019. Employers will then be required to provide this training at least once per year moving forward. Employees who start employment after January 1, 2019, must receive sexual harassment prevention training within 30 calendar days of hire.

The FAQs clarify that employers are required to provide sexual harassment prevention training to all employees, including temporary and part-time workers. Further, employers are permitted to take “appropriate administrative remedies” if an employee fails to complete sexual harassment prevention training despite the employer’s best efforts to provide such training.

Model Sexual Harassment Prevention Policy

In addition to a model training guide, New York state has also released a model sexual harassment prevention policy to be distributed by employers. The model policy provides employees with, among other things, a comprehensive definition of sexual harassment, examples of sexual harassment, and information regarding reporting sexual harassment both internally and to the New York State Division of Human Rights, the Equal Employment Opportunity Commission, and a local police department. The model policy is intended to be accompanied by a complaint form for employees to report sexual harassment. New York state’s model complaint form can be found here.

Similar to the model training, employers may either adopt New York state’s model policy or modify their existing policy to meet or exceed the state’s minimum standards. As described on the new website, these minimum standards are that the policy:

  • Prohibit sexual harassment consistent with guidance issued by the state;
  • Provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  • Include information concerning 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;
  • Include a complaint form;
  • Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  • Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  • 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; and
  • 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.

Regardless of whether an employer uses New York state’s model policy or revises a current policy, the employer’s sexual harassment prevention policy must be provided to employees in writing, but may also be provided electronically as long as employees are able to access and print the policy on a computer in the workplace. Notably, employers are encouraged to obtain a signed acknowledgment of the policy but are not required to do so.

Other Requirements Discussed in the FAQs

In addition to the model training guide and policy, the FAQs provide employers with important information regarding other requirements established by the new law.

The FAQs remind employers that as of July 11, 2018, employers are banned from requiring employees to arbitrate sexual harassment claims. In other words, any mandatory arbitration agreement must include a carve-out for the resolution of sexual harassment claims.

Furthermore, the FAQs clarify that effective July 11, 2018, employers may not require that a nondisclosure or confidentiality provision be included in a settlement agreement of a sexual harassment claim. Rather, a nondisclosure or confidentiality provision may be included in such a settlement agreement only when requested by the complaining party. Notably, it is not enough for an employee to simply request that a nondisclosure or confidentiality provision be included in the settlement agreement. Rather, the employee must memorialize his or her preference through the following three-step process:

  1. Any nondisclosure term or condition must be provided to all parties, and the person who complained shall have 21 days to consider it.
  2. If, after 21 days, such term or condition is the preference of the person who complained, such preference shall be memorialized in an agreement signed by all parties.
  3. For a period of seven days following the execution of an agreement containing such a term, the person who complained may revoke the agreement and the agreement shall not become effective or be enforceable until such revocation period has expired.

The FAQs clarify that employers have the right to initiate the above three-step process by suggesting that nondisclosure or confidentiality be included in a sexual harassment settlement agreement.

As a result of these new requirements, parties will need to enter into two separate agreements when a nondisclosure or confidentiality provision is included in a sexual harassment settlement agreement: 1) an agreement that memorializes the preference of the person who complained and 2) whatever documents incorporate that preferred term or condition as part of a larger overall resolution between the parties.

The Bottom Line

Employers will need to carefully review the guidance released by New York state to determine how to comply with the minimum standards for conducting sexual harassment prevention training and implementing a sexual harassment prevention policy. While the model training guide and policy issued by New York state may be revised following the end of the comment period on September 12, 2018, employers should use this opportunity to review their current policies and assess the best way to announce these changes to their employees.