by Sandra Cohen
Employers in New York State and New York City should be prepared for strict new regulations affecting sexual harassment policies.
Written Policies and New Training Requirement (NYS) - All New York employers, regardless of their size, must provide sexual harassment training annually to all employees and provide employees and consultants with a written non-harassment policy, starting October 9, 2018. The State Department of Labor was tasked with developing a model policy and a model training program that can be adopted by employers. The New York model policy was recently developed, but the DOL issued it in draft form and may still change it. Our colleague, New York employment lawyer Tracey Levy of Levy Employment Law, warns that employers should plan to implement the policy and training, but suggests not to distribute it until the DOL finalizes their draft, which may be on the eve of the effective date, October 9, 2018. "Employers are not required to adopt wholesale the model policy or the complaint form that the NYS DOL has developed, but instead can develop or revise their existing policies to meet certain minimum standards under the new law. In this regard, the NYS DOL's guidelines are fairly consistent with the language of the statute," advised Ms. Levy. New York Department of Labor also issued a three-page Complaint Form (two pages for the complainant to complete, and one instructing the employer on its obligations). New hires are required to take the training within the first 30 days of hire.
All employers are expected to initiate training for all employees by a deadline of January 1, 2019. The New York State DOL also issued a script for a model Sexual Harassment Prevention Training program. Ms. Levy commented that, "One of the greatest challenges of the training requirement is that it needs to be interactive; it won't suffice for employers to record a live training session and play that back for new hires to meet the 30-day training requirement." The DOL FAQs address this interactivity requirement, by explaining that there needs to be "some form of employee participation," which can include an opportunity for employees to ask questions of a live moderator, or a requirement to provide feedback on a recorded training session.
Other Important Notes for New York Employers:
Arbitration Clauses - are not effective for sexual harassment claims, according to the new law.
Contractors and Consultants are Covered - Employers may be liable for sexual harassment of contractors, subcontractors, vendors and consultants where the employer knows or should know that harassment is occurring in its workplace and fails to take immediate and appropriate corrective action to stop the offending conduct. So, the required policies must cover contractors as well.
Non-Disclosure Agreements - New York legislation prohibits non-disclosure agreements (NDAs) within any written settlement of a sexual harassment claim unless it is the expressed “preference” of the employee. To enact that preference, there is a further non-waivable 21- day waiting period, followed by a seven-day revocation period and a requirement that the employee provide a written statement of the preference to be bound by the non-disclosure.