Cozen O’Connor: Sexual Harassment Update: New Requirements for New York Employers [Labor & Employment Alert]

Sexual Harassment Update: New Requirements for New York Employers

Labor & Employment Alert

August 29, 2018

New York City and state continue to go their own way on workplace issues – imposing higher requirements on employers than are required by federal law and opening additional opportunities for employees to pursue claims. Here is what you need to know about the latest efforts to address sexual harassment issues:

September 6, 2018

By September 6, 2018, all New York City employers must display a new poster designed by the New York City Commission on Human Rights and provide employees an information sheet at the time of hire addressing the subject of sexual harassment. Click here for an English language copy of the poster that will meet the law’s requirements. A Spanish language version must also be posted, but the New York City Commission on Human Rights has not yet issued its approved Spanish language version.

The information sheet is almost identical to the poster. Click here for a copy. Instead of distributing this fact sheet, employers can satisfy the law if they incorporate the same language in their employee handbooks or in a separate policy that they distribute to employees.

October 9, 2018

New York state employers must provide employees with a written sexual harassment prevention policy against harassment that includes a “standard complaint form” that employees can, but are not required to, use. Although employers are free to adopt their own policies, the State Division of Human Rights and Department of Labor will be publishing model policy and complaint forms and posting them on their websites in the near future. A draft policy and model complaint form are open to public comments until September 12 and can be viewed here. Acceptable harassment policies must meet the following requirements:

  1. prohibit sexual harassment consistent with guidance issued by the department in consultation with the division of human rights and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  2. include, but not be limited to, information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
  3. include a standard complaint form;
  4. include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
  5. inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  6. clearly state 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
  7. clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.

Employers operating in both New York state and New York City should consider whether to combine the state and city requirements into one consolidated policy statement.

October 9, 2018

October 9, 2018, marks the start of an annual training requirement of all employees in New York state. Although the training must be interactive, it need not involve a live or in-person instructor. Employers may provide such training through computer or online instruction as well as by audio-visual materials. To be acceptable, the training must:

  1. explain sexual harassment;
  2. provide examples of prohibited conduct;
  3. include information concerning federal and state law related to sexual harassment and the remedies available under those laws; and
  4. inform employees of their rights to redress violations, including all available administrative and judicial forums for adjudicating sexual harassment claims.

Under the state requirements, all employees will have to be trained once by October 9, 2019, but companies bidding for state contracts on or after January 1, 2019, will be required to certify not only that they have a written policy in place to address sexual harassment prevention, but that they have already provided annual sexual harassment training to all of their employees.

April 1, 2019

Additional training requirements kick in on April 1, 2019,  for employers with 15 or more employees in New York City. The city will be publishing a model program that employers will be able to use if they supplement it with training on their internal complaint processes. Employers who develop their own programs should include the following elements:

  1. a description of the internal complaint process available to employees to address sexual harassment claims;
  2. a description of the complaint process available through the EEOC, the State Division of Human Rights and the City Commission on Human Rights, including contact information for all three agencies;
  3. an explanation of retaliation and examples of prohibited retaliatory conduct;
  4. information concerning bystander intervention, including resources that explain how to engage in it; and
  5. the specific responsibilities of supervisory and managerial employees in preventing sexual harassment and retaliation.

New York City will require employers to keep records of the training, including signed employee acknowledgments. These records must be maintained for three years.

Actions you should take now:

  • Download the poster and post it immediately wherever notices to employees are normally posted.
  • Download the fact sheet and provide a copy to newly hired employees until you decide whether to include all of this information in your employee handbook.
  • Review your existing handbook to make sure it complies with these new requirements as well as a variety of other laws that have gone into effect since your handbook was last revised.
  • Decide how you want to implement the new annual training requirements. Consider whether to outsource this effort or whether to train the trainers within your existing workforce.
  • Assign recordkeeping responsibility so that you can demonstrate compliance if and when called upon to do so.

Authors

Jeffrey I. Pasek

Member

jpasek@cozen.com

(215) 665-2072

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Cozen O’Connor has eight Labor and Employment attorneys licensed to practice law in New York who will be happy to answer your questions about these new requirements or to help you design your compliance efforts.