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September 2018

Update Regarding New York State and New York City Sexual Harassment Laws: Agencies Issue Materials and Guidance

As we previously reported in April 2018 (click here) New York State and New York City both issued new requirements and measures to combat workplace sexual harassment that must be implemented in the coming months. Under these new obligations, employers must adopt anti-sexual harassment policies and provide training to employees, among other things. Recently, the New York State Department of Labor (NYSDOL) and New York City Commission on Human Rights (NYCCHR) issued guidance and materials pursuant to these requirements.

New York State Materials

As previously reported, effective October 9, 2018, employers in New York State must adopt sexual harassment prevention policies that include standard complaint forms and provide sexual harassment prevention training annually to all employees. In furtherance of this obligation, the NYSDOL has released proposed materials, including a model policy, complaint form, training materials, and a list of “Frequently Asked Questions” (FAQs). Copies of all of these documents are available here and here. Please note that these documents are still in draft form, and the NYSDOL is accepting comments through September 12. Anyone is free to leave a comment by clicking here.

Employers may adopt the model policy or establish their own policy, so long as it meets or exceeds the minimum standards set forth in the statute. In either case, employers must provide the policy to employees in writing. Critical required components of the policy, as seen in the draft, include:

  • A thorough description of what constitutes sexual harassment, including examples;
  • A strong anti-retaliation provision;
  • Detailed reporting, complaint and investigation procedures – including a statement regarding supervisor responsibilities, and the requirement that an investigation should be completed within 30 days; and
  • A complete statement of an employee’s rights and procedures for reporting harassment to the New York State Division of Human Rights, the Equal Employment Opportunity Commission, and/or an applicable local agency.

According to the proposed FAQs, the policy may be provided electronically, but employees must be able to access the policy on a computer provided by the employer during work time and be able to print a copy for their records.

Regarding the training requirement, the NYSDOL released a document entitled “Model Sexual Harassment Training.”  At this point, the primary substantive material in this document is a model “training script” employers can use.  But the introduction to the document seems to indicate that more materials will follow, including a PowerPoint presentation to accompany the script and a video presentation.  We will, of course, continue to monitor the situation and advise when/if additional materials are issued.

Employers may utilize the model training materials or a comparable version that meets the statute’s minimum standards (which are outlined in a stand-alone document found at an above-provided link), but the training must be “interactive,” which requires some form of employee participation. The proposed FAQs clarify that interactive training may:

  • 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/or
  • Require feedback from employees about the training and the materials presented.

The proposed materials advise employers who use the model training to tailor it to the specific industry setting and organization’s practices. Employers should also provide the training in the language that is spoken by their employees.

The proposed FAQs also provide clarity about when training must be conducted and which employees must be trained. Employers only have until January 1, 2019 to provide employees with the required training. Employees who start after January 1 must complete training within 30 calendar days of commencing work. Thereafter, employees must receive training annually, which may be based on the calendar year, anniversary of each employee’s start date, or any other date the employer chooses. If new employees have received training from a prior employer within the past year that meets the statutory requirements, the employer may forego training.  However, the proposed materials emphasize that “[i]t is [the employer’s] responsibility to ensure that all employees are trained to [its] company standards and familiar with [its] company practices.” Thus, the FAQs note that employers may want to provide training to all new employees, regardless of their history of training at other employers. Finally, the proposed FAQs state that even temporary and part-time employees must receive training (even if they work for the company, or for the company within New York, for only a single day). Thus, for new employees in New York, or for employees in other states who may come to New York on business, it may be most advisable for companies to include this training as part of initial orientation.

It is also worth noting that the proposed FAQs address other topics, such as the legislation’s restrictions on including confidentiality terms as part of the resolution of sexual harassment claims. As reported in our previous publication, confidentiality must be the complaining party’s preference and cannot be included unless a process set forth in the statute is completed. The proposed FAQs clarify that employers are not prohibited from initiating the process by proposing a term or condition of confidentiality. The proposed FAQs further clarify that the statutory process requires the parties to enter into two separate agreements providing for nondisclosure: an agreement that memorializes the complaining party’s preference of confidentiality and the settlement or other agreement that ultimately incorporates that preferred term or condition.

New York City Materials

The NYCCHR has published sexual harassment resources on its website and released a mandatory posting and a factsheet in accordance with the “Stop Sexual Harassment in NYC Act,” which was enacted on May 9, 2018. Pursuant to the City law, on or before today, September 6, 2018, New York City employers must conspicuously display the anti-sexual harassment posting in both English and Spanish “in employee breakrooms or other common areas employees gather.” This poster must be at least 8.5 by 14 inches in size, contain a minimum of 12 point type, and be printed in color. Employers must also distribute the factsheet to employees at the time of hire, but this requirement is satisfied if the employer includes the factsheet in an employee handbook provided at the time of hire. Notably, the posting and factsheet are substantively identical. Both of these documents can be accessed at the NYCCHR website on the Stop Sexual Harassment Act webpage.

As a reminder, the City law also requires New York City employers with 15 or more employees to conduct annual sexual harassment prevention training beginning April 1, 2019. Thus, employers will need to integrate their trainings to meet both the State and City law requirements. Additionally, the City law requires employers to keep records of all trainings for at least three years, including a signed employee acknowledgment.

Conclusion

We expect that the NYSDOL’s final guidance will be issued after the public comment period ends on September 12, 2018, and that the NYCCHR will promulgate its own model training materials. But regardless of the specific content of these guidance materials, employers must ensure that they act quickly to post the required notices, issue the required policies, and implement the required training – especially given the State’s very short deadline that all current employees must receive training by January 1, 2019, less than four months away.  Employers should also consider expanding this annual training to encompass all forms of discrimination and harassment; as companies are required to provide training anyway, it could be helpful to cover all such topics to enhance the protection and benefit of this step in the defense of future claims.  Gordon & Rees has an employment law team that can provide harassment (and discrimination) prevention training to businesses of all sizes, including bilingual trainers available to provide training to Spanish-speaking employees. We can also assist with bringing your current handbook/policies into compliance.

Employment Law

Lindsey M. Blackwell
Mercedes Colwin



Employment Law