NY Combating sexual harassment takes more than talk

November 6th, 2019

Frank Kerbein, Director of the Center for Human Resources, The Business Council of New York State, Inc.

State Releases New Anti-Harassment Guidance

As we discussed previously, in August Governor Cuomo signed into law significant new obligations for employers regarding anti-harassment policies and training. To help employers comply with these new obligations, the State has just updated its Combating Sexual Harassment website – specifically the FAQ’s and a new Sexual Harassment Prevention Notice.

The new amendments require that - at the time of hire and at every annual training program - employers provide a Sexual Harassment Prevention Notice containing the employer’s sexual harassment prevention policy, the complaint form, and “the information presented at the employer’s training program.” Employers must provide the notice, policy and training materials in writing in English and in the language identified by an employee as their primary language, if different. The State has provided a template of the notice for use by employers.

As you will see, the rule requires employers to attach to their employee notice your anti-harassment policy and training materials used as part of your training program. Employers may distribute this information in print or digitally. The notice also requires that employers must designate a person or office to whom individuals can go to with questions or file a complaint, and provide appropriate contact information. The updated FAQ’s state that for new employees, employers should provide the notice, policy and training materials prior to or at the beginning of their first day of work.

The guidance also states that employers must provide these materials in both English and in an employee’s primary language if it is Spanish, Chinese, Korean, Polish, Russian, Haitian-Creole, Bengali or Italian - the State has published model materials that may be used to satisfy this requirement. While the guidance appears to only require that these materials be provided in the above-mentioned languages, it also states that because employers may be held liable for the conduct of all of their employees, employers are strongly encouraged to provide a policy and training in the language spoken by the employee, even if not one of the languages listed above.

Remember also that the new amendments put further restrictions on the use of non-disclosure agreements used in settlement cases and expands the existing prohibition on mandatory arbitration of sexual harassment claims to any claims of any unlawful workplace discrimination. However, this expanded prohibition applies only to the extent it is not inconsistent with federal law. Recently, the Southern District of New York held in Latif v. Morgan Stanley Co. (S.D.N.Y. June 26, 2019), that the prohibition on mandatory arbitration of sexual harassment claims is, in fact, preempted by the Federal Arbitration Act in situations where both laws apply. The new FAQ’s do not provide any further insight.

Though this new guidance and template have just been released, all employers, regardless of size, are required to comply with the anti-harassment policy, training and notification requirements as of October 11, 2019. Therefore, it is important to review your policy and training program with the revised minimum standards as published on the Combating Sexual Harassment website.