We previously sent an alert regarding sections of the 2018 New York Budget Bill (Budget) requiring employers to take certain anti-sexual harassment measures. These measures include implementing a policy and conducting training of all employees on an annual basis beginning in October 2018. The statute does not require employers to have completed training by October 9, 2018. These requirements apply to all employers who operate in New York State regardless of size or industry. A summary of these requirements from our prior client alert is below.
As part of that Budget, the New York Department of Labor and the New York Division of Human Rights were directed to develop a model policy and model training materials that can be adopted and used by New York employers to comply with the statute. These have not yet been released.
Recently, it has come to our attention that various vendors are selling policies and training sessions they claim are “compliant” with the new law. In fact, as stated, the Department of Labor has not yet issued regulations, model policies, or model training materials. In our review of some of these policies, we have found items that do not comply with best practices for anti-sexual harassment policies. We have also found that many training materials are missing important topics, particularly for supervisors and managers.
Our attorneys have many years of experience developing and editing policies and training. We have delivered training to employers large and small. We customize our policies and training with you so that they actually reflect your workplace realities and assist you in creating a superior work atmosphere, not just avoiding legal liability. In most cases, we can do this on a flat fee basis so that you have certainty as to what your expense will be. As soon as the New York State materials are available, we will advise our clients and friends, and will make any updates necessary to our standard policies and training.
In the meantime, we urge you to use caution in considering material you receive from a third party. We are available to review policies or materials you may receive from others, or to review your existing policies and procedures. If you would like to talk about scheduling training, please do not hesitate to contact us.
We will also be conducting seminars and trainings at our offices throughout New York State and in conjunction with other organizations as information becomes available. If you did not receive this client alert first hand and would like to be notified of our upcoming events, please e-mail Dawn at firstname.lastname@example.org.
—- Reprinted with Updates: —-
—- New York State Includes Anti-Sexual Harassment Measures in 2018 Budget Bill —-
Written Policy and Training
The Budget amends the Labor Law to require all employers with one or more employees to provide a written anti-sexual harassment policy to all employees and to provide training on preventing sexual harassment annually to all employees.
Among the new requirements for the written policy are that employers must provide a standard complaint form for reporting sexual harassment, include a procedure for investigation of complaints, and advise employees of all avenues of reporting, including their right to report to federal and state agencies. You may need to amend your policy to contain all of the new requirements.
The Budget details items that the training must include and specifies that the training must be “interactive” (passive on-line training will not qualify). We encourage employers to begin to prepare now with how they will schedule employees to meet this new training requirement.
The law requires the Division of Human Rights and the Department of Labor to develop model policies and training programs for employers and to post those programs on their website. These provisions will go into effect on October 9, 2018. The model policies and training are to be available prior to that date.
The Budget additionally indicates that the law applies not only to employees but, in some cases, to independent contractors.
Outside of the policy and training requirements, the Budget contains the following provisions potentially affecting our clients:
- Amends the state finance law to require that all competitive bids to the state must include a certificate that the bidder has a written anti-sexual harassment policy and conducts annual training to prevent sexual harassment in the workplace.
- Amends New York Civil Practice Law to prohibit mandatory arbitration of sexual harassment claims and to render null and void all contract clauses that require mandatory arbitration of sexual harassment claims, except in limited circumstances.
- Amends the General Obligations Law and Civil Practice Law to prohibit non-disclosure agreements in sexual harassment settlements unless such agreement is the preference of the Complainant and only after providing the Complainant 21 days to consider the agreement and 7 days to revoke it.
- Amends New York Public Officer’s law to require reimbursement of sexual harassment verdicts against public employees or officials.
These additional provisions are now in effect.
Actions to Take Now
Given the recent guidance at the federal level and these changes in New York, employers should not wait to begin preparing for these changes. Now is the time to update policies and employment agreements, and schedule interactive training for employees. New York employers should keep a careful watch for the model policy and training materials so that the existing policy and training can be reviewed when they are available.
We look forward to working with you to meet these new requirements.
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