By Gregory Hessinger

Following its passage of new laws requiring that all New York State employers provide annual sexual harassment prevention training and implement sexual harassment prevention policies, effective on October 9, 2018, New York State has now published final versions of compliance materials for employers on a dedicated website, which includes:  (1) a model sexual harassment policy; (2) model training materials; (3) a model complaint form; (4) Frequently Asked Questions (“FAQs”) relating to the model materials and new laws; and (5) lists of minimum standards for sexual harassment policies and trainings for employers who wish to prepare their own. 

Model Sexual Harassment Prevention Policy:

Employers may choose to distribute the model sexual harassment policy posted to the New York State website, or modify an existing written policy to meet or exceed the State’s minimum standards.  To meet the minimum standards, the policy must:

• Prohibit sexual harassment consistent with guidance issued by state agencies;
• Provide examples of prohibited conduct that would constitute unlawful harassment;
• Include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
• Include reference to a complaint form;
• Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
• Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
• 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
• Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

The FAQs provide guidance regarding the provision of sexual harassment policies to employees.  For example, employers must provide employees with the policies in writing or electronically.  If the policies are made available on work computers, employees must be able to print copies for their own records.  Moreover, employers need not adopt the investigative procedures set forth in the State model policy as long as the procedures actually adopted by the employers meet the minimum standards listed above.  In addition, a complaint form is not required to be included in the policy itself, but employees must be notified where the form may be found (e.g., on an employer’s internal website).

Model Sexual Harassment Prevention Training

Sexual harassment prevention training must be “interactive,” meaning it includes “some form of employee participation.”  The FAQs clarify that “participation” means the following:

• If the training is web-based, it has questions at the end of a section and the employee must select the right answer;
• If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner;
• In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions;
• Web-based or in-person trainings that provide a Feedback Survey for employees to turn in after they have completed the training.

The State’s model sexual harassment prevention training includes a sample script for trainers, model scenarios, and steps for reporting complaints.  For employers who choose not to use the model training provided by the State, the training they provide must, at a minimum:

• be interactive;
• include an explanation of sexual harassment consistent with guidance issued by the State;
• include examples of conduct that would constitute unlawful sexual harassment;
• include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
• include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
• include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

The FAQs clarify that by October 9, 2019, employers must provide all employees with sexual harassment prevention training, either using the model created by the state or a comparable version that meets the minimum standards.  New employees must complete the requisite annual sexual harassment training as soon as possible after hire.  In addition, employers are “required to ensure that all employees receive training.”  “Employee” includes all workers, regardless of immigration status, and also includes exempt or non-exempt employees, part-time workers, seasonal workers, and temporary workers.

Nondisclosure Agreements

The FAQs also address nondisclosure agreements related to sexual harassment.  In short, employers are prohibited from including confidentiality provisions relating to sexual harassment claims in their severance and settlement agreements unless the employee consents.  In order to establish consent, an employer must provide the employee with 21 days to consider whether to consent to the confidentiality provision, and 7 days to revoke that consent.  This timing is similar to that required for releases of claims brought under the Age Discrimination in Employment Act (“ADEA”), where employees who are age 40 or older are given these same time periods to consider whether to sign a release and whether to later revoke their signatures.  The FAQs specify that an employee who consents to nondisclosure must sign two separate documents: 1) an agreement that memorializes his or her specific consent to nondisclosure; and 2) whatever documents incorporate that preferred term or condition as part of a larger overall resolution between the parties.  In an important clarification, the FAQs also state that as long as the statutory process and timeline are followed, the law does not prohibit the employer from initiating this process.

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For more information please visit www.msk.com. If you have any questions feel free to contact Gregory Hessinger in our Labor & Employment Department.