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New York Passes Sexual Harassment Laws and Issues Employer Guidance

9/11/18

By: Will Collins

By October 9, 2018, New York employers must adopt a sexual harassment prevention policy and must provide training on that policy to all employees by January 1, 2019. Last week, New York launched a website that will serve as a hub for all resources related to the state’s new sexual harassment laws. The site contains key guidance setting the baseline for employer compliance. Among the resources, the website provides employers with a:

• Model Sexual Harassment Policy & Complaint Form;
• Model Sexual Harassment Prevention Training; and
• FAQs section addressing the requirements of New York’s sexual harassment laws.

At this point, all guidance on the site is only proposed and subject to change following the close of the public comment period on September 12, 2018. Once final, the model policies and training may be adopted by employers as their own.
Model Sexual Harassment Policy and Complaint Form
At a minimum an employer must adopt a sexual harassment policy that meets or exceeds the standards set by the New York Department of Labor.  The Model Policy expounds on those requirements and:

• Contains a broad statement of coverage, including “all employees, applicants for employment, interns, whether paid or unpaid, contractors and person conducting business with” an employer;
• Requires “[a]ll employees, including managers and supervisors,” comply and cooperate with any investigation of sexual harassment;
• Mandates that any manager or supervisor is “required to report any complaint that they receive, or any harassment they observe” to a designated individual;
• Outlines the investigation procedure, indicating that the investigation should be complete within 30 days;
• Contains a document retention component, requiring that an employer maintain documentation memorializing the details of the investigation, including the timeline, facts learned during the investigation, and any witnesses; and
• Requires that the employer notify the complainant of the employer’s determination at the end of the investigation, including notification of the complainant’s right to file a complaint or charge externally.

Model Sexual Harassment Prevention Training
Employers must provide training to all employees by January 1, 2019. After January 1, 2019, employees must receive training on the employer’s sexual harassment policy annually and new employees must receive training within the first 30 days of their employment. The Model Training guidance:

• Provides that all employees who work in the state of New York must receive training, even if the employee “works for just one day in New York;”
• Requires that training be offered in the spoken language of employee; and
• Tracks the Model Policy language, but contains details of specific examples of conduct illustrative of sexual harassment.

Again, employers do not have to use the training and materials provided by the New York Department of Labor. However, if developing their own training, employers must meet the minimum requirements.
FAQs Section
Among several key topics in the FAQs, this section of the website provides guidance on non-disclosure agreements and arbitration.

• Non-Disclosure: Beginning July 11, 2018, the law prohibits agreements preventing the disclosure of facts of any alleged sexual harassment unless the NDA is the preference of the individual making the Complaint. The FAQs clarify that the parties must enter into two separate agreements—one setting out the complainant’s preference and a second containing the non-disclosure provisions.
• Arbitration: The FAQs again reiterate that the law prohibits employers from mandating arbitration to “resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.”

Bottom Line
These are just a few of the developments in New York’s sweeping response to the #MeToo movement, pushing employers to adopt robust and comprehensive sexual harassment policies and training. Given the broad coverage of the requirements and the fast approaching deadlines, employers should take this opportunity to work with counsel to review their policies, including provisions of their handbook and any arbitration agreements to ensure compliance.
The attorneys in the FMG Labor and Employment Nation Practice Section are available to assist your organization, determine your obligations under New York law, and help you navigate day-to-day compliance as other states, counties, and cities enact similar regulations.
If you have any questions or would like more information, please contact Will Collins at [email protected].