New York state recently released a proposed model sexual harassment policy and a proposed model training program that can be used to comply with New York Labor Law Section 201-g, which requires that all employers either (i) use the model forms, or (ii) establish a policy and training program that meet the state’s minimum requirements. These requirements become effective on October 9, 2018. Moreover, employers with employees who work in New York City face additional sexual-harassment related obligations and deadlines. This alert briefly summarizes these developments.
New York State Model Sexual Harassment Documents
In August 2018, New York state issued drafts of a model Sexual Harassment Policy (Policy) and training program and requested comments from the public. We expect the final forms to be issued soon, but in the interim, here are links to the draft documents:
- Sexual Harassment Policy for All Employers in New York State
- Minimum Standards For Sexual Harassment Prevention Policies
- Complaint Form For Reporting Sexual Harassment
- Model Sexual Harassment Prevention Training
- Minimum Standards For Sexual Harassment Prevention Training
While the proposed model Policy contains traditional policy terms, the Policy also includes many elements that are not typically found in such employment policies, including protections for non-employee workers, a required complaint form, a promise of due process during an investigation, a description of the investigation process, and information regarding legal and external remedies.
Moreover, Labor Law Section 201-g requires employers to conduct annual sexual harassment prevention training for all employees and conduct training for new hires within 30 days of their start date. The model forms include a PowerPoint that can be used. This training must be completed by January 1, 2019 for all current employees.
If an employer declines to use the model Policy or model Training, the employer must be certain to cover all of the topics required by Labor Law Section 201-g, including that the employer “inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially.”
New York City’s Efforts to Combat Sexual Harassment
New York state, however, is not alone in confronting sexual harassment issues head-on. Earlier this year, New York City Mayor Bill de Blasio signed 11 bills into law, also known as the Stop Sexual Harassment in NYC Act, to seek to deter sexual harassment from occurring in the City. The expanded sexual harassment laws in New York City include, for example:
- Local Law 95 – Effective September 6, 2018, all employers must visibly display the Commission on Human Rights’ (Commission) anti-sexual harassment rights and responsibilities poster in employee common areas, such as employee breakrooms. Employers must also distribute to all new hires the Commission’s information sheet on sexual harassment, which addresses the same areas outlined in the Commission’s poster.
- Local Law 96 – Effective April 1, 2019, all employers with 15 or more employees must conduct anti-sexual harassment training on an annual basis for all employees (including interns) employed in the City. Employers are required to keep records of such training for at least three years and produce the records upon request from the Commission.
Other New York State Laws Addressing Sexual Harassment
In addition to implementing policies and conducting training, New York employers will need to evaluate others areas for compliance with the state’s new sexual harassment laws. The below referenced laws became effective earlier this summer.
New York employers cannot require employees to sign agreements that would prohibit persons who complained of sexual harassment to disclose the facts and circumstances of the alleged harassment, unless the complainant is the one seeking the confidentiality provision. In such cases, the complainant must have 21 days to consider the agreement’s non-disclosure term or condition and seven days after signing the agreement to revoke the agreement. See New York General Obligations Law 5-336 and New York Civil Practice Law § 5003-b.
Mandatory Arbitration Clauses
Unless permitted by federal law or included in collective bargaining agreements, New York employers are prohibited from entering into agreements with employees that require mandatory arbitration to resolve claims of unlawful sexual harassment. See New York Civil Practice Law 7515.1
State Contractor Compliance
Effective January 1, 2019, all state contractors must submit written confirmation that they have sufficient anti-sexual harassment policies and provide all employees with sexual harassment prevention training when submitting bids for state contracts. See New York Finance Law § 139-l.
What This Means
Employers with employees in New York and New York City should promptly review and evaluate their current sexual harassment policies and training programs and take steps to ensure they are compliant (and, in particular, have taken steps to comply with the October 9th deadline). Employers should also review other areas which may intersect with the expanded sexual harassment laws, such as employment and separation agreements, to ensure compliance with these new laws.
- The Supreme Court of the United States has held that the Federal Arbitration Act “preempts any state rule discriminating on its face against arbitration.” Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421 (2017). Therefore, the Federal Arbitration Act may preempt Section 7515.