Last week, New York State launched a new website that houses significant resources for employers and employees about the new legal obligations arising from the New York State Budget. The Combatting Sexual Harassment in the Workplace website includes draft model sexual harassment prevention training and policy materials that will be open for public comment through September 12, 2018. Upon finalization of the documents, which will occur at an unknown later date, employers may use the materials to satisfy their obligations under the new law.
As we previously reported, the New York State Budget contains several bills designed to prevent sexual harassment in the workplace. The new website contains guidance and draft materials relating to each of the significant components of the law. In addition to hosting drafts of the model sexual harassment training and policy, the website contains draft FAQs related to nondisclosure and mandatory arbitration clauses.
Draft Model Sexual Harassment Prevention Policy
Effective October 9, 2018, New York employers must adopt written sexual harassment policies. New York released the draft model policy that employers may choose to enact after the policy has been finalized to comply with the new law.
Some notable aspects of the draft model policy and the associated FAQs include:
- An explicit statement that the policy applies to “all employees, applicants for employment, interns, whether paid or unpaid, contractors and persons conducting business” with the employer;
- A requirement that the policy must be posted in all work locations and provided to employees upon hiring;
- A requirement that managers and supervisors report any harassment complaint or any harassment that they observe;
- A statement that an investigation of a harassment complaint “should be completed within 30 days”; and
- An explanation of the various steps for an investigation, which include: (1) conducting an “immediate review of allegations,” taking any appropriate interim actions, and encouraging the complainant to complete a written complaint form (or if he/she refuses, prepare a complaint form based on the oral complaint); (2) taking steps to preserve any potentially relevant documents or emails; (3) reviewing all relevant documents; (4) interviewing all of the parties involved (including witnesses); (5) creating written documentation of the investigation; (6) retaining the written documentation for the employer’s records; (7) promptly notifying the complainant and alleged harasser of the final determination of the investigation; and (8) notifying the complainant of his/her right to file a complaint or lawsuit pursuant to local, state, and federal law.
Alternatively, employers may choose to adopt their own sexual harassment policies. At a minimum, the policy must: (1) prohibit sexual harassment consistent with guidance issued by the New York Department of Labor in consultation with the Division of Human Rights and provide examples of prohibited conduct; (2) clearly state that sexual harassment is a form of employee misconduct and individuals engaging in sexual harassment and supervisory personnel who knowingly allow such behavior will be disciplined; (3) include information regarding federal and state laws on sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be additional applicable local laws; (4) include a model 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 of redress and the forums where disputes can be adjudicated both administratively and judicially; and (7) clearly state that retaliation against individuals who complain of sexual harassment or who assist in any investigation or proceeding involving sexual harassment is unlawful.
Notably, the website also contains a draft model complaint form that employers may use to gather information from the complainant.
Draft Model Sexual Harassment Prevention Training
The New York State Budget also requires employers to provide employees with sexual harassment training on an annual basis, starting on October 9, 2018. Although the law is silent as to when employers must complete the first round of annual training, the draft materials indicate that all employees must complete the training by January 1, 2019. This is a new development that employers must be prepared to meet, especially in light of the fact that the model training materials are still in draft form until further notice. Additionally, all new employees must complete their sexual harassment training within 30 calendar days of their start date.
Currently, the draft model training document only includes general instructions for employers, a script for in-person group training, and a list of the minimum training standards that employers must meet if they decide not to use the model training program. As indicated by the website, a model PowerPoint presentation and video presentation are forthcoming.
The draft model training materials (including the associated FAQs), also indicate that all employees (including temporary and transient employees) must receive training even if “someone just works for one day for the employer, or if someone works for just one day in NY.” Further, the FAQs explain that a new employee may be considered trained if the employee’s former employer used the “same unmodified state model training or one of similar substance,” but also suggests that “even if the same training is used, [employers] may still wish to train new employees to [their] standards.”
If an employer chooses not to use the model sexual harassment training, the training must at minimum: (1) be interactive; (2) provide an explanation of sexual harassment as set forth in guidance issued by the New York Department of Labor in consultation with the Division of Human Rights; (3) include examples of sexual harassment; (4) include information regarding relevant federal and state laws and remedies available to victims of sexual harassment; (5) provide information regarding employees’ rights of redress and the available forums for adjudicating complaints; and (6) include information regarding supervisor conduct and supervisor responsibilities. As noted within the FAQs, “interactive” means training that may: (1) be web-based with questions asked of employees; (2) accommodate questions asked by employees; (3) include a live trainer who can answer any questions; and/or (4) require feedback from employees about the training program.
Draft FAQs on Mandatory Arbitration and Nondisclosure Clauses
The new website also includes information relating to the current prohibition against (1) using nondisclosure clauses in settlements or agreements concerning claims of sexual harassment (unless requested by the plaintiff/complainant) and (2) requiring employees to submit sexual harassment claims to mandatory arbitration.
With regard to the use of nondisclosure clauses, the draft FAQs detail how parties should memorialize the plaintiff/complainant’s preference to include such a provision. Namely, the employer must first enter into a separate agreement with the plaintiff/complainant indicating the plaintiff/complainant’s preference to include the nondisclosure clause (which is subject to a 21-day consideration period and 7-day revocation period) and only then may the actual agreement containing the nondisclosure language (and all other terms) be lawfully executed.
The draft FAQs do not contain any significant developments concerning the prohibition on mandatory arbitration clauses.
New York City Employers
Overall, employers should be prepared to meet the deadlines listed above – although all of the guidance is currently in draft form so it’s possible for the deadlines to be altered following the comment period – and consult with counsel regarding requirements under the new law. Further, as previously reported, New York City employers must also comply with the new Stop Sexual Harassment in NYC Act, which notably imposes its own set of specific training requirements for employers with 15 or more employees beginning on April 1, 2019. The New York City Commission on Human Rights will create an online module that employers may use at no charge to comply with the new law, but it is unclear when this module will be ready. Employers should consult with counsel to ensure compliance with both laws.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.
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