As of today, October 9, 2018, all New York employers, from local "mom-and-pop" stores to Fortune 500 companies, are required to comply with the state's new requirements for sexual harassment awareness and prevention. These new requirements impose employer obligations related to harassment policies and trainings, and build upon those already in effect, such as the prohibition of nondisclosure agreements relating to claims of sexual harassment.
Following the announcement of the 2019 New York state budget, signed by Governor Cuomo this past April, employers have watched the evolution of these newly mandated obligations. Most recently, a mere eight days before the law's effective date, the New York State Department of Labor and the New York State Division of Human Rights released their final guidance and model materials to the public. The key elements of both the policy and training requirements, effective as of today and as reflected in the final guidance, are set forth below.
Harassment Policy Requirements
Employers must distribute an updated harassment policy today. The law requires that employers either implement the state's model sexual harassment prevention policy (updated October 1) or create their own, which must at least adhere to the state's minimum standards detailed below.
While many employers indubitably have sexual harassment policies included in their employee handbooks or elsewhere, under the new law an employer's sexual harassment prevention policy must include, among other things:
- a procedure for appropriately timed confidential investigations of complaints;
- a reference to federal and state statutory provisions concerning sexual harassment and the remedies available under the same;
- a complaint form, which does not need to be completely contained in the policy;
- information regarding employees' rights of redress in administrative and judicial forums; and
- sanctions against individuals engaging in sexual harassment, including supervisors or managers who knowingly allow such behavior.
As of today, employers must provide all employees with a copy of the updated policy in writing or electronically. If the policy is provided electronically (for example, via a work computer), employees must have the option of printing a copy for their own records. After October 9, all new hires must be presented with a copy of the policy upon hire.
It is not uncommon that employers are remiss in training employees on their policies on harassment, including sexual harassment, and discrimination. But this will no longer be an option. Now, every New York employer is required to arrange annual sexual harassment prevention training for all of their employees. The deadline for completion of the initial training for all employees is October 9, 2019, and all new employees must be trained "as quickly as possible." This reflects an adjustment from the original guidance, providing additional time and flexibility for employer compliance. The New York State Department of Labor and Division of Human Rights has released a model training, but employers are not required to adopt it. At a minimum, the training must:
- be interactive;
- include an explanation of sexual harassment and examples thereof;
- include information on federal and state statutory provisions concerning sexual harassment and the remedies available under the same;
- include information on the forums available to employees for adjudicating sexual harassment complaints; and
- provide information addressing a supervisor's conduct and additional supervisor responsibilities regarding sexual harassment.
As noted above, these policy and training requirements are only part of the state's new law aimed at reframing and elevating the approach to sexual harassment in the workplace.
Other notable requirements established by the new law include:
- an expansion of the New York State Human Rights Law, which makes it statutorily unlawful for an employer to permit sexual harassment of contractors, subcontractors, vendors, consultants, or other non-employees in the workplace;
- a requirement that bidders for state or public department or agency contracts, where competitive bidding is required, affirm to a legally prescribed statement signifying their compliance with the state-mandated training and policy requirements, under penalty of perjury;
- a prohibition on mandatory arbitration clauses in contracts entered into on or after July 11, 2018 that require a party alleging sexual harassment to submit to arbitration prior to the commencement of a legal action to enforce the contract, although exceptions apply where the prohibition is inconsistent with federal law or where a collective bargaining agreement allows for it; and
- a ban on non-disclosure agreements that preclude the disclosure of facts of a complaint or claim of sexual harassment unless the inclusion of such a provision is the complainant's or plaintiff's "preference."
In addition to the state-level requirements, New York City has similarly taken aim at eradicating unlawful sexual harassment. To that end, New York City employers with 15 or more employees will also be required to provide annual sexual harassment training for all employees beginning on April 1, 2019, and must reconcile the differences in the requirements under the city and state laws to confirm that their training program incorporates both laws.
For help ensuring that your business is compliant with the new laws, please contact the authors or any member of Venable's Labor and Employment Practice Group.