Employers of all sizes have probably heard about the New York State and New York City legal responses to the #MeToo movement – the State and City have each taken serious measures to combat sexual harassment and discrimination in the workplace. The new laws require employers to promulgate harassment prevention policies and implement harassment prevention training sessions (among other topics), all of which are aimed at curtailing sexual harassment in the workplace. Even workplaces with only one employee in New York State are subject to these dramatic changes and new requirements.
The New York State and City laws largely overlap, and below is a quick guide summarizing the rules and implications of both sets of laws.
What are the training and policy requirements of these new laws and is my business covered?
o NYS and NYC laws will require employers to provide their employees with annual sexual harassment prevention training. NYS law applies to every employer, regardless of size or number of employees, and New York City law applies to employers with 15 or more employees.
o NYS law also requires all NYS employers to implement a new harassment prevention policy.
What type of harassment prevention training is required? What content must be included?
o New York State and New York City are similar in their training mandates. Both require that the sessions be “interactive” – although “live” training is considered best, the training at minimum must give employees the chance to ask questions and have them answered by knowledgeable individuals.
o Right now, employers have the option of adopting the model training developed by New York State (and New York City is due to come out with its own model), or implementing training that is equal to or exceeds the minimum standards and which includes, among other topics:
o Definition and examples of sexual harassment;
o Information on federal, state and local laws prohibiting sexual harassment;
o Information on how to report harassment, both internally and externally, including a description of the available federal, state, and local complaint processes;
o Information on employees’ rights of redress, and forums for adjudicating complaints;
o Explanation of retaliation, its prohibition, and examples of prohibited activities;
o An explanation for supervisors about their heightened responsibilities in preventing harassment and retaliation and reporting misconduct they observe or know about;
o A discussion of bystander intervention.
o While some of these components are only required by New York City law, it is best practice to include these modules in the program for New York State employees as well.
When must I institute the interactive harassment prevention training?
o In New York State, all current employees must complete their harassment prevention training by October 9, 2019, and then repeat such training annually. All new employees must complete their sexual harassment prevention training within 30 days of hire.
o Beginning April 1, 2019, New York City employers with 15 or more employees must provide harassment prevention training to employees and interns annually, and within 90 days of hire, unless they received training at a previous employer.
What must my harassment prevention policy include?
o In New York State, all employers are required to have a new harassment prevention policy that includes specific requirements set forth in the law. The State has created a model policy that employers may adopt. The State also permits employers to create a more customized policy that addresses certain minimum topics, including, among other items:
o A statement prohibiting sexual harassment;
o Examples of conduct constituting prohibited sexual harassment;
o Information about federal, state and local laws concerning sexual harassment, employees’ rights of redress, and all available forums for adjudicating complaints;
o Information addressing conduct by, and additional responsibilities for, supervisors;
o A statement that sexual harassment constitutes employee misconduct, for which employees may be subjected to sanctions;
o A complaint form and a procedure for timely and confidential investigation of complaints;
o A provision prohibiting retaliation against individuals reporting sexual harassment or testifying or assisting in any investigation or proceeding.
Can I use the same harassment prevention policy I already have in place?
o In New York State, there are very specific requirements that must be included in the policy, so it is unlikely that an existing policy will be meet the minimum standards.
When must my new harassment prevention policy be instituted?
o The New York State law requires the policy be effective as of October 9, 2018.
What guidance have the State and City created for employers?
o New York State has created a website with a wealth of information for employers on Combating Sexual Harassment in the Workplace, which includes (i) a model sexual harassment prevention policy and complaint form; (ii) a model sexual harassment prevention training program; (iii) minimum standards for sexual harassment prevention policies and trainings; and (iv) a list of frequently asked questions (FAQs) to ensure compliance with the new law. The guidance provides that employers can use the State’s models, or can use their own materials, if those meet or exceed the legal requirements.
o New York City will create an online interactive training module for use by an employer to satisfy the City training requirements; however, it has not been posted yet. However, like the State law, the City already has published minimum requirements, and will permit employers to customize their own program, so long as that meets or exceeds the City’s requirements.
Are there any other requirements under these laws that I should know about?
o Contractual Limits: In July 2018, New York State instituted a prohibition on mandatory arbitration of sexual harassment claims, and instituted limits on the use of nondisclosure agreements relating to claims of sexual harassment. Any employer responding to a harassment claim should be aware that these are specific and technical contractual provisions.
o Posting and Distribution: In September 2018, New York City required employers to (i) distribute (upon hire) a NYC Stop Sexual Harassment Fact Sheet with harassment prevention rules and responsibilities; and (ii) post a NYC Stop Sexual Harassment Act Notice in a conspicuous place in the place of business.
What to Do Now:
It is most important that your actions reinforce your organization’s commitment to combatting workplace discrimination and harassment.
o Review and update your existing Harassment Prevention Policies.
o Schedule trainings. Consider conducting live training programs for employees and supervisors, or alternatively, identify online programs that have been updated and are “interactive.” Remember to retain training acknowledgement forms for at least three (3) years.
o For employers covered by NYC law, post and distribute the NYC information sheet to meet legal obligations.