New York State launched a website in August called “Combating Sexual Harassment in the Workplace.” The website contains various materials (including a model policy, model training materials, a model complaint form and FAQs) in connection with recently enacted New York State laws designed to further prevent, and protect victims of, sexual harassment. New York City has also recently enacted new laws designed to further prevent, and protect victims of, sexual harassment. The materials on New York State’s website were subject to comment through Sept. 12, 2018. A note on the website states that “[t]he comments are being reviewed and necessary revisions being considered, with finalized documents expected to be released in the near future.” We will issue a new alert with any material changes to the finalized documents.
The state and city laws, which take effect in 2018 and 2019, affect private employers by, among other things:
- Requiring them to update their sexual harassment policies and implement annual sexual harassment prevention training that meet or exceed the standards set by the new laws.
- Prohibiting nondisclosure provisions regarding the underlying facts and circumstances of sexual harassment claims, except where the provision is the complainant’s preference.
- Prohibiting mandatory predispute arbitration provisions for sexual harassment claims.
- Expanding liability for sexual harassment claims to independent contractors and certain other nonemployees.
- Requiring employers to post anti-sexual harassment rights and responsibilities notices in both English and Spanish, and to distribute a similar notice to employees at their time of hire.
As a result of these new laws, employers must implement or update, as the case may be, their sexual harassment policies and sexual harassment prevention training programs; make sure any arbitration provisions and settlement agreements conform to new requirements; and make the required postings and distributions.
The 2018-2019 state budget, signed into law by Gov. Andrew Cuomo on April 12, requires New York employers and agencies to take a range of substantive actions to prevent sexual harassment and protect victims of harassment. The new measures include:
Development of a model policy and training program. The New York State Department of Labor (NYSDOL) and the Division of Human Rights (NYSDHR) are charged with developing a model sexual harassment prevention policy and a model sexual harassment prevention training program. All New York state employers — regardless of size — must adopt the model programs or establish their own policies and programs that meet or exceed the models’ standards. Such policies must be adopted by Oct. 9, 2018. According to the draft FAQ on the state’s website, all employees must receive this training by Jan. 1, 2019, and each calendar year thereafter, and all new employees after Jan. 1, 2019, must receive training within their first 30 days of employment. Below are the specific requirements of this training and policies.
Model policy. The model sexual harassment prevention policy must:
- Prohibit sexual harassment consistent with guidance issued by the NYSDOL and NYSDHR.
- Provide examples of prohibited conduct that would constitute unlawful sexual harassment.
- Provide information on state and federal laws concerning sexual harassment and remedies available to victims, and state that there may be applicable local laws.
- Include a standard complaint form (see the state’s draft model form).
- Include a procedure for the timely and confidential investigation of complaints that ensures due process for everyone involved.
- Inform employees of their rights of redress and all available forums for handling complaints administratively and judicially.
- State that sexual harassment is considered a form of employee misconduct, and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow this behavior to continue.
- State that retaliation against individuals who complain of sexual harassment or those who testify or assist in any proceeding under the law is unlawful.
New York State has issued a draft model policy, which implements the above requirements of the new law. Notably, although the law does not state what would constitute a timely and confidential investigation of complaints that ensures due process for everyone involved, the draft policy states that an investigation of any complaint “should” be completed within 30 days, and outlines the steps for conducting investigations of sexual harassment, including:
- Conduct an “immediate” review of the allegations.
- Encourage the complaining employee to complete a written complaint form or, if s/he refuses, prepare a complaint form based on the oral reporting.
- Take steps to preserve relevant documents, emails or phone records.
- Request and review all relevant documents, including all electronic communications.
- Interview all parties involved, including any relevant witnesses.
- Create written documentation of the investigation that includes, among other things, (i) a list of all documents reviewed, along with a detailed summary of relevant documents; (ii) a list of names of those interviewed, along with a detailed summary of their statements; (iii) a timeline of events; (iv) a summary of prior relevant incidents, reported or unreported; and (v) the final resolution of the complaint, together with any corrective actions action(s).
- Inform the complainant of his or her right to file an external complaint or charge.
If the above steps and procedures for an investigation make it into the final model policy, they will, while not necessarily required by law, likely be the standard for what constitutes a timely and confidential investigation of complaints that ensures due process for everyone involved.
Model training program. The model sexual harassment prevention training program must:
- Be provided to all employees on an annual basis.
- Be interactive (see the below-described FAQ guidance).
- Include an explanation of sexual harassment consistent with guidance issued by the NYSDOL in consultation with the NYSDHR.
- Include examples of unlawful sexual harassment.
- Include information on federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment.
- Include information about employees’ rights and all available forums for adjudicating complaints.
- Include information addressing conduct by supervisors and any additional responsibilities for these supervisors.
Notably, the law does not specify the length of the required training, or the format (e.g., in person or online).
The draft FAQs explain the requirement that the training be “interactive” – that is, some form of employee participation – meaning the 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 draft FAQs also state that employees who must receive the required training include temporary and transient employees, even “if someone just works for one day for the employer, or . . . works for just one day in NY.”
New York State has issued draft training materials. While these materials are for in-person training, the state has indicated that it will make available a PowerPoint and video presentations.
Employers that choose not to use the model policy and training program must provide a sexual harassment prevention policy and training program to all employees that meets or exceeds the model prevention policy and training program developed by the NYSDOL and NYSDHR.
Prohibition of nondisclosure clauses in sexual harassment settlements. Effective July 11, 2018, employers have no authority to include nondisclosure clauses in any settlement agreement or other resolution of a sexual harassment claim that would prevent the disclosure of the underlying facts and circumstances to the claim or action, unless the condition of confidentiality is the complainant’s preference. Under newly enacted New York Civil Practice Law and Rules (CPLR) Section 5003-b, any such term or condition must be provided to all parties to the agreement and, similar to settlement agreements under the Age Discrimination in Employment Act (ADEA), the complainant must be provided at least 21 days to consider this term or condition, and the complainant will have seven days following execution of the agreement to revoke his or her acceptance of the agreement.
The draft FAQs state that two agreements would be required to establish a complainant’s agreement not to disclose facts underlying a claim of harassment — one agreement (with the 21-day consideration period and seven-day revocation period) memorializing the complainant’s preference to maintain the allegations as confidential, and a second agreement containing the nondisclosure language and any other terms of the parties’ agreement resolving the dispute. Perhaps, the final FAQs will allow the same document to establish the employee’s preference and contain the substantive terms, as requiring two documents seems unnecessary and is contrary to current practice in the analogous ADEA context. Notably, the FAQs state that “the employer initiate the process by suggesting a term or condition of confidentiality . . . [a]s long as the statutory process and timeline summarized above is followed[.]”
Notably, this law does not bar provisions requiring that the settling individual maintain the confidentiality of the terms of the agreement.
Prohibition of mandatory arbitration of sexual harassment claims. Effective July 11, 2018, Section 7515 was added to the New York CPLR. Under CPLR 7515, New York employers with four or more employees are barred from requiring, in any contract entered into after the July 11, 2018 effective date, the mandatory binding arbitration of sexual harassment claims. Section 7515 also declares that, if a contract nevertheless contains such a prohibited provision (presumably including ones entered into prior to July 11, 2018), the provision will be rendered null and void without affecting the enforceability of the remaining provisions of the contract.
Employers may continue to use mandatory predispute arbitration provisions for claims other than those for sexual harassment. Also, because Section 7515 applies only to predispute arbitration provisions, it does not prohibit parties from agreeing to arbitration for sexual harassment claims after a dispute arises. Also, as an exception to the new law, collective bargaining agreements may provide for mandatory predispute arbitration of sexual harassment claims.
While the issue has not yet been decided by any court, employers will likely argue that Section 7515 is pre-empted by the Federal Arbitration Act, which establishes Congress’ preference for arbitration as a means of dispute resolution and pre-empts any state rule discriminating on its face against arbitration.
Prohibition of sexual harassment of nonemployees. Employers are barred from allowing the sexual harassment of nonemployees in their workplaces. An employer may be held liable to a nonemployee contractor, subcontractor, vendor, consultant or other person providing a contracted service in the workplace for sexual harassment, when the employer or supervisors knew or should have known that the nonemployee was subjected to sexual harassment in the employer’s workplace and failed to take immediate appropriate and corrective action. This provision took effect April 12, 2018.
Importantly, the extent of the employer’s control and any other legal responsibility that the employer may have regarding the harasser’s conduct will be considered, though the legislation does not specify how and in what forum the harasser’s conduct would be reviewed.
Requirement for competitive bidders for certain state or public contracts to confirm they have sexual harassment prevention policies and training in place. Effective Jan. 1, 2019, competitive bidders for state or public contracts must sign a statement confirming that their policies and training meet minimum state standards. Every bid must contain the following statement: “By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid, each party thereto certifies as to its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing sexual harassment prevention in the workplace and provides annual sexual harassment prevention training to all its employees. Such policy shall, at minimum, meet the requirements of section two hundred one-g of the labor law.”
State departments and agencies may elect to require this confirmation even when the competitive bidding process is not used.
Reimbursement of funds paid by state agencies and entities for sexual harassment claims. Any employee who is subject to a final judgement of personal liability for intentional wrongdoing related to a sexual harassment claim must reimburse any state agency or entity that makes a payment to a plaintiff for an adjudicated award based on a sexual harassment claim for his or her proportionate share of that judgment, notwithstanding any law to the contrary. The employee must personally reimburse the state agency or entity within 90 days of the state agency or entity’s payment of the award.
NEW YORK CITY: THE STOP SEXUAL HARASSMENT IN NYC ACT
New York City Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act on May 9, 2018. The act comprises 11 bills targeting sexual harassment in the workplace. The bills that apply to private employers mandate:
Broader scope of coverage. The new legislation expands the city law prohibiting sexual harassment to all employers in New York City (not just those with four or more employees, as was the case previously). The amendment took effect upon enactment of the law on May 9, 2018.
Annual sexual harassment prevention training. All city agencies and the offices of the mayor, borough presidents, comptroller and public advocate must conduct annual sexual harassment prevention training for all employees (Bill 612-A). Private employers with 15 or more employees must conduct annual sexual harassment prevention training for all employees (Bill 632-A). Training is required for full- and part-time employees, including interns, who work more than 80 hours in a calendar year, and must be provided 90 days after their initial hiring. However, new employees who have received anti-sexual harassment training at a prior employer within the required training cycle are not required to receive additional training at another employer until the next annual training cycle. The training mandate will take effect on April 1, 2019.
Training must be “interactive,” which is defined by the legislation as “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory forms of training as determined by the commission. However, such ‘interactive training’ is not required to be live or facilitated by an in-person instructor in order to satisfy the provisions of this subdivision.”
At the very least, the training must:
- Inform employees that sexual harassment is illegal under federal, state and city discrimination laws.
- Provide examples of sexual harassment.
- Explain the employer’s internal complaint process, as well as the process available through the City Commission on Human Rights, the State Division of Human Rights and the Equal Employment Opportunity Commission.
- Emphasize the prohibition of retaliation, and give examples of what constitutes retaliation.
- Provide information about bystander intervention.
- Outline supervisors’ and managers’ responsibilities in preventing sexual harassment and retaliation.
In addition, the City Commission on Human Rights will develop an online interactive training module, which may be used to satisfy the training component, as long as employers also inform employees of their internal reporting procedures. The module will be free to the public and must include an electronic provision of certification.
The legislation also provides that an employee needs to receive sexual harassment prevention training only once per required cycle. Although it does not define the length of a “cycle,” a cycle is believed to mean a calendar year. Further, multijurisdictional employers may use a single training program for all employees, so long as the training program meets all the requirements of the New York City law.
Employers must keep a record of all trainings, including a signed employee acknowledgment, which may be electronic. Employers shall maintain these records for at least three years and make records available for inspection by the Commission upon request.
Prominently posted information. Effective Sept. 6, 2018, all employers in New York City, regardless of the number of their employees, must conspicuously display, in their employee break rooms or other common areas, anti-sexual harassment rights and responsibilities notices in both English and Spanish, and distribute a fact sheet to individual employees at the time of hire, which may be included in an employee handbook.
Expanded protections under the New York City Human Rights Law. Amendments to this law apply gender-based discrimination provisions to all employers, regardless of the number of employees (Bill 657-A); give the New York City Commission on Human Rights the power to eliminate and prevent sexual harassment as a form of discrimination (Bill 660-A); and increase the statute of limitations for filing an administrative charge of gender-based harassment from one year to three years from the time that the alleged harassment occurred (Bill 663-A). The statute of limitations for filing a lawsuit for sexual harassment — which was already three years — remains unchanged. These provisions took effect upon the law’s enactment on May 9, 2018.
Reporting requirements. Contractors and subcontractors that apply for city contracts must include their employment practices, policies and procedures on addressing sexual harassment in the employment report required of proposed contractors and subcontractors (Bill 693).
What Employers Should Do Now
New York employers should take, at a minimum, the following steps to comply with the new state and city laws:
- Review the state’s model anti-sexual harassment policy and, by Oct. 9, 2018, revise, as necessary, their own anti-sexual harassment policies to comply with the new requirements, including, without limitation, coverage to contractors, vendors and other nonemployees.
- Review the state’s model anti-sexual harassment training programs and, by Jan. 1, 2019, provide training to all New York employees. Thereafter, provide training to all new employees within 30 days after their hiring and, again, to all employees each calendar year. Training for New York City employees should also meet the new city law requirements.
- Review arbitration programs and provisions in form contracts to determine whether changes are required on a going-forward basis with respect to arbitration of sexual harassment claims.
- Revise form separation and settlement agreements to comply with the new laws prohibiting confidentiality requirements for facts and circumstances of sexual harassment claims, unless these requirements are the complainant’s preference. With respect to any agreements with these confidentiality requirements, follow the required procedures, which according to the draft FAQs involves two agreements, the first of which must provide for the required 21-day review and seven-day revocation periods.
- Train human resources professionals and in-house counsel on the new state and city requirements.
- Display the anti-sexual harassment rights and responsibilities poster designed by the New York City Commission on Human Rights in any New York City office locations, and include the Commission’s fact sheet in their employee handbooks (or otherwise distribute the fact sheet to all new employees).