Oct 04, 2018 Employment Discrimination

New York State Division of Human Rights Issues Final Model Policy and Training Documents Related to New Sexual Harassment Law

As previously reported here, both New York State and New York City recently passed broad expansions of the laws regarding sexual harassment in the workplace. On October 1, 2018, the New York State Division of Human Rights (NYSDHR) issued final versions of a model sexual harassment policy, model training, and Frequently Asked Questions (FAQs), replacing earlier drafts. Employers may either use the NYSDHR models or adopt their own policy and training materials that meet or exceed the standards of the models. The NYSDHR materials can be downloaded from their website here. The NYSDHR also clarified that while an employer must adopt a sexual harassment policy that meets or exceeds the model standards by October 9, 2018, employers now have until October 9, 2019, to provide all employees with the required annual training (not December 31, 2018, as stated in the NYSDHR’s draft FAQs). The FAQs also explain the NYSDHR’s position regarding the general ban on non-disclosure agreements in the resolution of any claim involving sexual harassment, except where the person who complained prefers to include such a provision.

The NYSDHR will publish the model policy and training materials in other languages, including Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish, and Haitian-Creole, but these translations are not yet available.

Model Policy

Both the state and city laws require employers to provide additional written information to employees about sexual harassment.[1] As the NYSDHR policy focuses on sexual harassment and only briefly mentions harassment or discrimination based upon other protected categories (e.g., race, age, religion, national origin, sexual orientation, etc.), it is advisable for employers to issue a more comprehensive policy prohibiting all forms of harassment and discrimination based upon any protected characteristic.

The NYSDHR advises that an employer may distribute its policy electronically, as long as employees are able to print a copy. In addition, the NYSDHR has published an optional poster that can be used to inform employees where to find a copy of the employer’s policy.

The NYS law also requires employers to have a complaint form that employees may (but are not required to) use to make complaints. The form does not have to be included in an employer’s policy, but the policy must inform employees where they can obtain the form, such as from the Human Resources department or an internal employer website.

Model Training

The final NYSDHR FAQs have corrected an error in the draft FAQs, making it clear that employers have until October 9, 2019, to provide the first training to employees (not December 31, 2018, as erroneously stated in the draft FAQs), which must then be repeated annually. All employees must receive annual training, regardless of the employer’s size, including supervisors and non-supervisors, part-time workers, seasonal workers, and temporary workers.  

While the training does not have to be live, it must be “interactive.” The NYSDHR has provided several options that employers may use to meet the “interactive” requirement, including:

  • If the training is web-based, it should either require employees to answer questions, and then provide them with the correct answer, or give employees an opportunity to submit a question online and receive an answer immediately or in a timely manner; 
  • The interactive component will be satisfied in a live, in-person training if the presenter asks the employees questions or gives time throughout the presentation for employees to ask questions; and
  • Web-based or in-person training may provide a Feedback Survey for employees to turn in after they have completed the training.

A training that only requires an employee to watch a video or read a document, with no feedback mechanism or interaction, will not satisfy the interactive requirement

The NYSDHR has published a list of the minimum requirements for compliant training. If employers have already provided training regarding sexual harassment in 2018 but the training did not meet all of the requirements of the NYSDHR model training, employers should provide supplemental training on or before the October 9, 2019 deadline.

Finally, the NYSHDR acknowledges in the FAQs that its model training policy includes “materials that are not expressly required in the law,” and that these materials are not mandatory, but states that the additional material is “strongly recommended.” For example, there is no explicit requirement in the law that employees be informed of the statute of limitations for claims of sexual harassment, but the model training includes the time limits by which an employee must either file a complaint with the NYSDHR or file a lawsuit in state court.

Additional Requirements for Non-Disclosure Agreements

The new law revised Section 5-336 of the New York General Obligations Law and Section 5003-b of the New York Civil Practice Law and Rules so that, as of July 11, 2018, employers may not include in any agreement resolving a claim of sexual harassment “any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant’s preference.”

If the complainant prefers to include a non-disclosure clause, the complainant must be given twenty-one (21) days to consider the non-disclosure clause and seven (7) days to revoke any agreement to abide by a non-disclosure clause. Although this appears to mirror the provisions included in the federal Older Workers Benefit Protection Act (OWBPA), the new NYSDHR FAQs explain that the “purposes of the state and federal provisions are not the same” and describe different procedures employers must follow.

Under the OWBPA, an employer resolving an age discrimination claim can be given a single document that contains all of the provisions of the settlement agreement and must be given twenty-one (21) days to consider the document before signing it, but can decide to sign it earlier. In contrast, according to the NYSDHR FAQs, employers must provide individuals resolving sexual harassment allegations with two documents: (1) a settlement agreement with all terms, including any non-disclosure provisions, and (2) a separate document that states that it is the complainant’s preference to include a non-disclosure clause.[2] 

Furthermore, complainants resolving sexual harassment claims may not waive the twenty-one (21) day consideration period. Therefore, they cannot sign either document until twenty-one (21) days after receipt, even if they want to sign earlier, and the twenty-one (21) day consideration period cannot overlap with the seven (7) day revocation period.[3]

The FAQs do clearly state, however, that employers are permitted to initiate the above process by suggesting that a non-disclosure provision be included in an agreement, as long as the above process is followed.

Next Steps

Employers should review their current policies to determine if they meet the minimum requirements of the NYS law. Although the NYSDHR did not publish the final version of its model policy until October 1, 2018, the law requires employers to adopt a compliant policy by October 9, 2018. Despite this timing, the NYSDHR has not indicated whether it will strictly enforce the October 9, 2018 deadline.

Employers should also begin planning to provide training to all employees, both current employees, and new employees. Although employers now have until October 9, 2019, to provide annual training to current employees, the NYSDHR recommends that new employees be trained “as soon as possible” and that employers should distribute their policy to new employees before they have started work.

Employers should also review any form settlement agreements they use to resolve disputes involving sexual harassment claims to follow the NYSDHR’s instructions regarding non-disclosure agreements.

If you have any questions or would like assistance in drafting or revising policies, training programs, and model settlement agreements, please do not hesitate to contact one of our attorneys.

[1] A poster and information sheet that employers were required to post and distribute by September 6, 2018, under the NYC law was published in August 2018 by the New York City Commission on Human Rights, as previously reported here.

[2] The NYSDHR answers “yes” to FAQ No. 7, which asks “[d]oes the process established under the law mean that the parties will need to enter into two separate documents providing for nondisclosure: 1) an agreement that memorializes the preference of the person who complained, and 2) whatever documents incorporate that preferred term or condition as part of a larger overall resolution between the parties?

[3] The answer to FAQ No. 8 states “[t]he text of the new law requires that the 21-day period expire before the plaintiff’s preference can be memorialized in an agreement signed by all parties, and the minimum 7-day period does not start to run until after that agreement is executed.”