As we have previously reported, pursuant to provisions of the state budget signed into law this past April, effective October 9, 2018, all New York State employers will be required to adopt written sexual harassment prevention policies and institute annual anti-harassment training for employees.
To that end, New York State has just launched a new website on Combating Sexual Harassment in the Workplace that includes, among other things, draft model sexual harassment prevention policy and training documents that, when finalized, may be used by employers to satisfy their requirements under the new laws. The website also includes draft FAQs on the policy and training requirements, as well as other aspects of the new laws, including the prohibition on mandatory arbitration of sexual harassment claims and limits on nondisclosure agreements relating to claims of sexual harassment, both of which took effect on July 11, 2018.
The draft model documents and FAQs will be open for public comment through September 12, 2018, after which revisions will be considered and the documents ultimately finalized.
Draft Model Sexual Harassment Prevention Policy
The draft model sexual harassment prevention policy incorporates the requirements set forth in the law to address, at a minimum, certain relevant topics, including an explanation of sexual harassment and examples of conduct constituting same, information about employees’ rights of redress and all available forums for adjudicating complaints, and information addressing conduct by, and additional responsibilities for, supervisors. These requirements are also enumerated in a draft Minimum Standards for Sexual Harassment Prevention Policies document.
Among other key points, the draft model policy and the associated draft FAQs:
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state that the policy “applies to all employees, applicants for employment, interns, whether paid or unpaid, contractors and persons conducting business with” the employer;
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emphasize that “managers and supervisors are required to report any complaint that they receive, or any harassment that they observe” as designated in the policy;
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indicate that an investigation of any complaint “should be completed within 30 days”;
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outline in significant detail the external reporting avenues and remedies available to employees through the EEOC, New York State Division of Human Rights, New York City Commission on Human Rights (where applicable), and the local police department;
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set forth steps for investigations, including: (i) conducting an “immediate review of the allegations;” (ii) encouraging the complainant to complete a written complaint form or, if s/he refuses, preparing a complaint form based on the oral reporting; (iii) taking steps to preserve relevant documents, emails or phone records; (iv) creating written documentation of the investigation that includes certain key information; and (v) informing the complainant of his or her right to file an external complaint or charge;
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indicate that the policy “must be posted prominently in all work locations and be provided to employees upon hiring”;
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note that a signed acknowledgment of receipt of the policy is not required, but that employers are “encouraged” to obtain one from employees; and
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state that employers may provide access to the policy electronically, but employees must be able to access the policy on an employer-provided computer during working time and must be able to print a copy for their records.
Additionally, a draft model complaint form has been prepared for use in collecting information from the complaining employee or individual. Among other things, the draft form seeks information on the nature of the complaint and parties involved (including potential witnesses), whether the individual has previously made any complaints of harassment to the employer, and whether the individual has filed a claim with a government agency or a lawsuit in connection with the complaint and whether or not s/he has hired an attorney.
Draft Model Sexual Harassment Training Documents
The draft model sexual harassment training documents also incorporate the requirements under the law to address certain topics, largely mirroring those required to be included in the employer’s harassment prevention policy. These requirements are also enumerated in a draft Minimum Standards for Sexual Harassment Prevention Training document.
Currently, the draft documents only include a script for in-person group training. However, a model PowerPoint presentation and video presentation will ultimately also be made available, though it is unclear when these additional documents will be issued and whether they will also be subject to public comment.
Among other points, the draft model training documents and the associated draft FAQs:
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state that “all employees must complete the model training or a comparable training that meets the minimum standards by January 1, 2019.” This is a significant new development, as the statutory language does not establish a deadline for employers to conduct the first annual training under the law;
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state that “all new employees should complete sexual harassment prevention training within 30 calendar days of their start date.” This is also a significant development, as the statutory language does not address a timeframe for training of new employees;
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state that “all employees must complete an additional training at least once per year,” and that the annual training “may be based on calendar year, anniversary of each employee’s start date or any other date the employer chooses”;
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state that all employees, including temporary and transient employees, must receive training, even “if someone just works for one day for the employer, or . . . works for just one day in NY”;
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provide guidelines for what constitutes “interactive” training, meaning that some form of employee participation is required and the training may: (i) be web-based with questions asked of employees as part of the program; (ii) accommodate questions asked by employees; (iii) include a live trainer made available during the session to answer questions; and/or (iv) require feedback from employees about the training and materials presented; and
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address when new employees that have received training from a prior employer within the past year can be deemed by the new employer to have satisfied the law’s training requirements.
Draft FAQs on Nondisclosure and Mandatory Arbitration Provisions
Finally, the website includes draft FAQs addressing two other key elements of the new harassment laws that have already taken effect, namely: (i) the prohibition on the use of nondisclosure clauses in settlements or agreements relating to claims of sexual harassment, unless the condition of confidentiality is the preference of the complainant; and (ii) the prohibition on mandatory arbitration clauses for claims of workplace sexual harassment.
While the draft FAQs do not provide much additional detail on the mandatory arbitration prohibition, they do include some further guidance as to how parties may memorialize that a nondisclosure provision is the preference of the complainant. Specifically, the draft FAQs set forth a three-step process as follows:
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Any nondisclosure term or condition must be provided to all parties, and the complainant shall have 21 days from the date provided to consider such term or condition;
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If, after 21 days, such term or condition is the preference of the complainant, such preference shall be memorialized in an agreement signed by all parties; and
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For a period of 7 days following the execution of an agreement containing such a term or condition, the complainant may revoke the agreement and the agreement shall not become effective or be enforceable until such revocation period has expired.
Notably, however, the draft FAQs go on to state that two agreements would be needed to establish a complainant’s agreement not to disclose facts underlying a claim of harassment—one agreement 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.
This suggests that, in the view of New York State, employers may not be able to satisfy the above-noted requirements simply by including a 21-day consideration period in a separation or settlement agreement that contains a nondisclosure provision relating to a claim of sexual harassment, but rather must first enter into a separate agreement with the complainant memorializing his or her assent to the nondisclosure provision (which would be subject to the 21-day consideration period), following which the nondisclosure provision may be incorporated into the separation or settlement agreement or other resolution document (which in turn would be subject to a 7-day revocation period).
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As noted above, the newly released documents are currently in draft form, and it is possible that some of the aspects of the guidance that may be of particular concern to employers—such as the deadlines for providing employee training—will be revisited during and following the comment period. We will continue to keep a close eye on further developments with regard to these model documents and the New York State anti-harassment laws.
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