The Wait is Over: New York State Model Policy and Training, and New York City Postings Are Here

As we previously reported here and here, New York State and New York City each recently passed aggressive laws to combat sexual harassment in the workplace. On August 23, 2018, the New York State Department of Labor (NYSDOL) released drafts of model materials in addition to supplemental information to aid in compliance with the new laws. These include (1) a model sexual harassment prevention policy; (2) a model sexual harassment complaint form; (3) a model sexual harassment prevention training program; (4) minimum standards for employer sexual harassment prevention policies and trainings; and (5) a list of draft frequently asked questions (FAQs) on the new requirements.

The NYSDOL’s proposed materials clarify that employers must complete the initial training by January 1, 2019. The NYSDOL also clarified certain issues regarding the non-disclosure agreement and arbitration limitations imposed by the new law. Comments to the draft materials may be submitted on or before September 12, 2018, after which the NYSDOL will publish final materials, which might be modified from the current published drafts.

The New York City Commission on Human Rights (NYCCHR) also recently published sexual harassment materials as required under the amended New York City law, which will be effective on September 6, 2018. The new NYCCHR materials include (1) an anti-sexual harassment rights and responsibilities poster, in both English and Spanish, which all New York City employers must display and (2) a fact sheet that must be distributed to all new employees.

Below are the key highlights of the new guidance under these important New York State and New York City laws.

New York State Model Sexual Harassment Prevention Policy

Under the amended New York State law, effective October 9, 2018, all employers in New York State must implement a sexual harassment prevention policy and a sexual harassment prevention training program that meets or exceeds minimum standards set by the NYSDOL.

Key Provisions

New York State’s draft model sexual harassment prevention policy includes, among other things, the following key provisions:

• • In addition to employees, the policy applies to all “applicants for employment, interns, whether paid or unpaid, contractors and persons conducting business with” the employer.
  • The policy does not leave any discretion to managers and supervisors, who are “required to report any complaint that they receive, or any harassment they observe” to a designated person under the policy. (Emphasis in original).
  • The policy states, “[a]ny harassing conduct, even a single incident, can be addressed under this policy.” However, the policy fails to set forth any standard under which such claims are analyzed. For example, the policy does not mention the New York State Human Rights Law’s “severe or pervasive” standard.
  • The policy provides that employers should complete investigations within 30 days and use a standard complaint form. If an employee declines to complete the standard complaint form, the policy requires employers to prepare a complaint form based upon the oral reporting.
  • The policy requires employers to maintain “a written documentation of the investigation (such as a letter, memo or email), which contains the following:
    • A list of all documents reviewed, along with a detailed summary of relevant documents;
    • A list of names of those interviewed, along with a detailed summary of their statements;
    • A timeline of events;
    • A summary of prior relevant incidents, reported or unreported; and
    • The final resolution of the complaint, together with any corrective actions action(s).”

• At the conclusion of the investigation, the policy requires that the employer notify the complainant of the final determination and his or her right to file a complaint or charge externally as outlined in the policy. Employers may notify the parties via email.
• The policy highlights that, aside from the internal process, employees may also choose to pursue legal remedies with the U.S. Equal Employment Opportunity Commission (EEOC), the New York State Division of Human Rights (NYSDHR), the NYCCHR  (if applicable), and/or the local police department, at any time. The policy sets forth detailed information regarding federal, state, and local laws, as well as various remedies and forums available to complainants.
• The policy outlines the remedies available to the victim if discrimination is found after a hearing, including injunctive relief, paying monetary damages, attorneys’ fees, and civil fines.

New York State’s Draft Model Complaint Form

The NYSDOL also issued a draft model complaint form. While the amended statute does not require employers to use a specific complaint form, the NYSDOL’s model form includes, among other things, the following:

• A statement that the employer must follow its sexual harassment prevention policy and investigate any claims upon the submission of the form
• A link to the New York State’s website regarding sexual harassment.
• The complainant’s Information, including his or her select preferred communication method, and his or her supervisor’s information.
• Details about the complaint, including but not limited to, dates of the alleged incidents and names of witnesses.
• Voluntary questions regarding whether the complainant has complained before to any administrative agency or in court, and whether or not he or she is represented by an attorney.

New York State’s Minimum Standards for Sexual Harassment Prevention Policies

Notably, employers are not required to adopt the NYSDOL’s model sexual harassment prevention policy or the model complaint form. However, all sexual harassment prevent policies must equal or exceed the State of New York’s minimum standard guidelines in the new “Minimum Standards for Sexual Harassment Prevention Policies” document by the October 9, 2018 deadline. According to the minimum standards guidelines, employers that do not adopt the model sexual harassment prevention policy must ensure that the policy it adopts “meets or exceeds” the following minimum standards:

• a prohibition of sexual harassment, “consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights”;
• “examples of prohibited conduct that would constitute unlawful sexual harassment”;
• “information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws”;
• “a complaint form”;
• “a procedure for the timely and confidential investigation of complaints that ensures due process for all parties”;
• notice to “employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially”;
• a clear statement “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 such behavior to continue”; and
• a clear statement “that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.”

While employers are not required to adopt the NYSDOL’s model policy, pursuant to N.Y. Labor Law § 201-g(1)(b), “[e]very employer shall adopt the model sexual harassment prevention policy  . . . or establish a sexual harassment prevention policy to prevent sexual harassment that equals or exceeds the minimum standards provided by such model sexual harassment prevention policy.” New York State employers will therefore need to carefully consider any substantive variances from the model policy.

Under the guidance, sexual harassment prevention policies must be posted prominently in all work locations and be provided to employees upon hiring. Employers may provide their policy to employees electronically, but employees must be able to access the policy on a computer provided by the employer during work time and to print a copy for their records. Further, while a signed acknowledgement is not required, the NYSDOL encourages employers to obtain one.

New York State Model Sexual Harassment Prevention Training

The NYSDOL’s draft model sexual harassment prevention training includes guidelines for employers on how to conduct training. Below are the key elements of these guidelines.

Who Must Receive Training?

Under the FAQs, all employees who work in New York State for at least one day each calendar year (including part-time, temporary, or transient employees) must receive the training.

What Training Must Be Provided?

The draft training script largely tracks the model sexual harassment prevention policy, and includes specific case studies to explain the kind of behaviors that can constitute sexual harassment. Notably, the draft model training outlines instructions for employers, including, among other things, the following:

• The training should detail any internal process employees are encouraged to use to complain and include the contact information for the specific names and offices with which employees alleging harassment should file their complaints.
• The model training should also be modified to reflect the work of the organization by including, for example, industry specific scenarios.
• Employers should provide employees with training in the language that is spoken by their employees.

Employers that do not use the model training developed by the NYSDOL must ensure that, by October 9, 2018, they implement sexual harassment prevention training that meets or exceeds the published Minimum Standards for Sexual Harassment Prevention Training , which  requires that the training:

• “be interactive;
• include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
• include examples of conduct that would constitute unlawful sexual harassment;
• include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
• include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
• include information addressing conduct by supervisors and any additional responsibilities for such supervisors.”

While employers are not required to adopt the NYSDOL’s model training, pursuant to N.Y. Labor Law § 201-g(2)(c), “[e]very employer shall utilize the model sexual harassment prevention training program . . .  or establish a training program for employees to prevent sexual harassment that equals or exceeds the minimum standards provided by such model training.” New York State employers will therefore also need to carefully consider any substantive variances from the model training.

It currently remains unclear how the New York State training will interact with the annual training required under New York City’s Local Law 96, which is set to go into effect on April 1, 2019.

When Must Training Be Provided?

The draft FAQs clarify that all employees must complete the initial training by January 1, 2019. Thereafter, additional training must be completed at least once per year and “may be based on calendar year, anniversary of each employee’s start date or any other date the employer chooses.” Employees who begin their employment after January 1, 2019 “should” complete their sexual harassment prevention training within 30 calendar days of their start date.

How Must Training Be Provided?

Sexual harassment prevention training must include employee participation. The FAQs describe employee participation to mean that 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.”

Currently, only the draft script for in-person group training has been released. The NYSDOL may publish a model PowerPoint and/or video materials to accompany the script and FAQs. However, the timing on the issuance of additional and finalized materials is currently unclear.

Other Notable Guidance for All New York State Employers

The NYSDOL clarified certain issues regarding the nondisclosure agreement and arbitration limitations imposed by the amended New York State law.

Nondisclosure Requirements

Beginning on July 11, 2018, employers in New York State are prohibited from entering into nondisclosure agreements that prevent disclosure of the underlying facts and circumstances of alleged sexual harassment, unless the condition of nondisclosure is the preference of the person who complained.

The law sets forth a particular process for memorializing the complainant’s preference to enter into a nondisclosure provision in such an agreement. Significantly, the NYSDOL’s draft FAQs clarify that the parties must enter into two separate agreements to satisfy this process: (1) the first agreement “memorializes the preference of the person who complained,” following the law’s three-step procedure; and (2) a second agreement that contains the nondisclosure provision and any other terms and conditions of the parties’ agreement.

The Mandatory Arbitration Prohibition

Beginning on July 11, 2018, employers in New York State are prohibited from entering into arbitration clauses that the parties submit to mandatory arbitration to “resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.” The draft FAQs reiterate this prohibition without providing any substantive guidance, and clarify that the law applies to all contracts entered into on or after July 11, 2018.

Poster and Notice Issued for New York City Employers

Pursuant to Local Law 95, effective September 6, 2018, all employers in New York City must display an anti-sexual harassment rights and responsibilities poster, in both English and Spanish. Employers must also distribute a fact sheet to all new employees, which is nearly identical to the poster and intended to satisfy a separate policy and notice requirement under the new local law. The NYCCHR has published both the English and Spanish versions of the poster, as well as the fact sheet. Employers are required to conspicuously display the poster and provide the fact sheet to new employees at the time of hire. There is no requirement that the fact sheet be distributed to all current employees, although employers may elect to do so.

How Should Employers Prepare?

The requirements imposed by the model documents, guidelines, FAQs, and minimum standards described above will pose significant challenges to New York State and New York City employers. By way of example, both the New York State and New York City materials encourage employees to bypass employers’ internal complaint procedures, potentially leaving employers without the opportunity to investigate sexual harassment allegations. Further, New York State’s draft model harassment prevention policy and training materials may require employers to amend their existing policies and trainings to meet the minimum standards.

To prepare for these changes in New York laws, employers should consider

• reviewing their current practices;
• ensuring that their sexual harassment policies meet the minimum standards set forth in the new laws;
• adopting annual sexual harassment trainings that meet the minimum standards set forth in the new laws and preparing to deliver the New York State training to all employees by January 1, 2019;
• reviewing all employment agreements and separation or settlement agreements to ensure that any nondisclosure clauses meet the requirements of the new state law;
• monitoring and reviewing materials to be published by the NYSDOL, the NYSDHR and the NYCCHR to ensure compliance with final model policies and training programs; and
• training all employees involved with employee relations on the new requirements.

Ogletree Deakins will continue to monitor developments on these important state and local legislations and will post updates on the firm’s blog as additional guidance becomes available.