July 2, 2020

Volume X, Number 184

July 02, 2020

Subscribe to Latest Legal News and Analysis

July 01, 2020

Subscribe to Latest Legal News and Analysis

June 30, 2020

Subscribe to Latest Legal News and Analysis

June 29, 2020

Subscribe to Latest Legal News and Analysis

New York State Employers Take Note!!! Compliance With New Sexual Harassment Law Required By October 9, 2018

As described in a previous blog post, New York’s 2019 Budget created significant new responsibilities for employers in the state with respect to sexual harassment prevention. As of October 9, 2018, all employers in New York State are required to: (i) circulate a policy prohibiting sexual harassment that complies with state requirements; and (ii) conduct annual sexual harassment training for all employees in accordance with state standards.

On August 23, 2018, New York State released draft model sexual harassment materials to assist employers in complying with the Budget’s requirements by the October 9, 2018 effective date. Specifically, the State released the following materials:

All of the above materials are currently in draft form, and thus subject to change by October 9, 2018. However, they provide a useful guide for employers preparing to comply with state requirements as of the effective date.

Recap of Sexual Harassment Policy Requirements

By October 9, 2018, all employers must have a compliant sexual harassment policy, which can be provided to employees in hard copy or electronic form, but must also be accessible and printable during working hours. A compliant sexual harassment policy must have the following elements:

  • A statement prohibiting sexual harassment;
  • An explanation and examples of prohibited sexual harassment;
  • Information on federal and state statutes prohibiting sexual harassment;
  • A statement that local anti-sexual harassment laws may apply;
  • Remedies and rights of redress under the applicable statutes;
  • Company procedure for reporting and timely investigation of complaint;
  • A complaint form;
  • A prohibition on retaliation; and
  • A statement that sanctions will be enforced against those who engage in sexual harassment and managers and supervisors who knowingly allow sexual harassment.

Recap of Sexual Harassment Training Requirements

Additionally, New York employers must provide annual sexual harassment trainings to all employees. While the new requirements go into effect on October 9, 2018, New York State has clarified that all employees must receive a compliant sexual harassment training no later than January 1, 2019, and on an annual basis thereafter. New hires who begin work after January 1, 2019 must receive a compliant sexual harassment training within 30 days of hire. Temporary and transient employees, even if they work in New York for only one day, also must receive compliant training. Compliant training must have the following elements:

  • An interactive component. Employers can satisfy the “interactive” training requirement by: (1) asking questions of the employees as part of the program; (2) including Q&A portion to accommodate employee questions; (3) using a live trainer to conduct the training or making a live-trainer available to answer questions; or (4) requiring employee feedback about the training. The state instructs employers to implement as many of the above interactive components as feasible;
  • An explanation and examples of prohibited sexual harassment;
  • Information on federal and state statutes prohibiting sexual harassment;
  • Remedies and rights of redress under the applicable statutes; and
  • An explanation of added responsibilities for supervisory employees.

Mandatory Arbitration Clauses and Non-Disclosure Agreements

Finally, as described in greater detail in our previous blog post, New York employers are now prohibited from using mandatory arbitration clauses and non-disclosure agreements with respect to sexual harassment claims. However, non-disclosure agreements (for instance, in settlement agreements) regarding sexual harassment claims and the facts underlying those claims are enforceable so long as: (i) the complainant consents to such an agreement; and (ii) the complainant is given 21 days to consider the agreement and 7 days to revoke consent; and (iii) the agreement terms are provided to all relevant parties.

Although the model materials remain in draft form, New York employers should begin to get ready for compliance before the October 9, 2018 effective date. We will provide updates as new information becomes available.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume VIII, Number 250

TRENDING LEGAL ANALYSIS


About this Author

Associate

Lindsay Colvin Stone is an associate in the Labor and Employment Practice Group in the firm's New York office.

Areas of Practice

Ms. Stone is experienced in representing employers in a wide array of labor and employment matters in judicial, arbitral and agency forums, including disputes related to restrictive covenant and non-competition agreements, misappropriation of trade secrets, wage and hour issues, wrongful termination, and discrimination and harassment. Ms. Stone also regularly counsels clients on matters relating to internal...

216-653-8184