As described in a previous blog post, New York’s 2019 Budget created significant new responsibilities for employers in the state with respect to sexual harassment prevention. As of October 9, 2018, all employers in New York State are required to: (i) circulate a policy prohibiting sexual harassment that complies with state requirements; and (ii) conduct annual sexual harassment training for all employees in accordance with state standards.
On August 23, 2018, New York State released draft model sexual harassment materials to assist employers in complying with the Budget’s requirements by the October 9, 2018 effective date. Specifically, the State released the following materials:
- An informational webpage for employers and employees;
- A model sexual harassment prevention policy;
- A model sexual harassment complaint form;
- Model sexual harassment training materials; and
- A Frequently Asked Questions guide to new state sexual harassment laws.
All of the above materials are currently in draft form, and thus subject to change by October 9, 2018. However, they provide a useful guide for employers preparing to comply with state requirements as of the effective date.
Recap of Sexual Harassment Policy Requirements
By October 9, 2018, all employers must have a compliant sexual harassment policy, which can be provided to employees in hard copy or electronic form, but must also be accessible and printable during working hours. A compliant sexual harassment policy must have the following elements:
- A statement prohibiting sexual harassment;
- An explanation and examples of prohibited sexual harassment;
- Information on federal and state statutes prohibiting sexual harassment;
- A statement that local anti-sexual harassment laws may apply;
- Remedies and rights of redress under the applicable statutes;
- Company procedure for reporting and timely investigation of complaint;
- A complaint form;
- A prohibition on retaliation; and
- A statement that sanctions will be enforced against those who engage in sexual harassment and managers and supervisors who knowingly allow sexual harassment.
Recap of Sexual Harassment Training Requirements
Additionally, New York employers must provide annual sexual harassment trainings to all employees. While the new requirements go into effect on October 9, 2018, New York State has clarified that all employees must receive a compliant sexual harassment training no later than January 1, 2019, and on an annual basis thereafter. New hires who begin work after January 1, 2019 must receive a compliant sexual harassment training within 30 days of hire. Temporary and transient employees, even if they work in New York for only one day, also must receive compliant training. Compliant training must have the following elements:
- An interactive component. Employers can satisfy the “interactive” training requirement by: (1) asking questions of the employees as part of the program; (2) including Q&A portion to accommodate employee questions; (3) using a live trainer to conduct the training or making a live-trainer available to answer questions; or (4) requiring employee feedback about the training. The state instructs employers to implement as many of the above interactive components as feasible;
- An explanation and examples of prohibited sexual harassment;
- Information on federal and state statutes prohibiting sexual harassment;
- Remedies and rights of redress under the applicable statutes; and
- An explanation of added responsibilities for supervisory employees.
Mandatory Arbitration Clauses and Non-Disclosure Agreements
Finally, as described in greater detail in our previous blog post, New York employers are now prohibited from using mandatory arbitration clauses and non-disclosure agreements with respect to sexual harassment claims. However, non-disclosure agreements (for instance, in settlement agreements) regarding sexual harassment claims and the facts underlying those claims are enforceable so long as: (i) the complainant consents to such an agreement; and (ii) the complainant is given 21 days to consider the agreement and 7 days to revoke consent; and (iii) the agreement terms are provided to all relevant parties.
Although the model materials remain in draft form, New York employers should begin to get ready for compliance before the October 9, 2018 effective date. We will provide updates as new information becomes available.