By Henry L. Goldberg, Legal Counsel, Subcontractors Trade Association
Partner, Moritt Hock & Hamroff LLP

I am pleased to advise that this month’s Legal Log was co-authored by my colleague, Keith Frank, an expert in employment law and sexual harassment investigations.

New York State, following on the heels of New York City, has just enacted a new sweeping “Sexual Harassment Law” that will affect virtually all employers in the State.  Both laws require employers to have strong sexual harassment policies and mandatory annual training of all managers and employees.  The State and City are collaborating and will determine shortly whether compliance with the State law will be deemed to be in compliance with the City law.  A decision on this clearly reasonable “safe harbor” for City employers should be made shortly.

The New York City law was signed on May 9, 2018 and became effective on September 6, 2018.  The New York State law became effective on October 9, 2018.  The NYC law includes all employers with 15 or more employees.  The NYS law covers every employer in New York, regardless of the number of employees, so smaller employers should be particularly vigilant regarding the enforcement efforts by State agencies.

Written-Harassment-Policy Requirement 

Both the City and State law require employers to establish sexual harassment policies that comport with certain minimum requirements. The requirement that a definition of what constitutes sexual harassment is most likely already met in many employers’ present policy (provided they have one).  However, certain new, minimum content requirements may be stricter than what most employers currently have in place.  For instance, the policy must now advise employees as to what laws already exist addressing sexual harassment, as well as advice as to how to make a complaint outside the confines of the employer.  For example, how, specifically, may an employee seek redress through federal, state and local administrative agencies, such as the Equal Employment Opportunity Commission (EEOC) and the NYS Division of Human Rights.   The law also requires inclusion of a procedure for the filing of a complaint.  The policy must also provide examples of workplace conduct that constitutes sexual harassment.  The State law also specifically requires that the employer have a complaint form that comports with the State law and which is readily available to any employee.

Under both laws, the employer is not only required to establish a written sexual harassment policy, but also must affirmatively provide it to employees.  It can be provided to the employees either as a paper document or electronically.  As when distributing an employee handbook, the best practice is to have the employee acknowledge receipt.  Likewise, the employer would be advised to have the employee acknowledge receipt of the sexual harassment policy as well, either electronically or in writing.

The City law also requires that employers which meet the number-of-employees threshold, to have a poster of the law in a common area of the workplace where it would be seen by employees (i.e. break room, near time clock, etc.)  This is similar to the long-standing Labor Law posting requirements of both the Federal and State government.  The State law does not require that a poster be displayed by the employer in the workplace, but does advise that it is good practice to do so.

Claim-Prosecution-Assistance Requirement

As indicated, the sexual harassment policy requirement mandates guidance to all employees on how to navigate contacting outside governmental agencies if an employee wishes to make a complaint against the employer.  It is likely the requirement will cause most employers to have misgivings.  Employers will feel as if they are providing employees with a roadmap to bring an external complaint against the company, somewhat akin to bringing the rope to your own hanging!

Annual Training Requirement

In addition to the written policy requirement, and the affirmative distribution of the policy requirement (and in New York City the mandatory posting of the policy in a common area), employers under both laws are required to conduct mandatory sexual harassment training for all employees, whether managerial or hourly. The City law requires for those employees that fall within its reach, that the training commence after April 1, 2019 and be done each calendar year. The State law also mandates that the training be done yearly and employers have until October 9, 2019 to complete the first training under this law.  For those employers who fall under both the City and State law, the training should be done no later than between April 1, 2019 and October 9, 2019, respectively.

As with the written policy requirement, the training requirement, also mandates that certain (minimum) areas be addressed, such as a definition of sexual harassment, the laws that apply and the employees’ available options to complain to an outside governmental agency.  The training is also required to be interactive amongst the employees and cover workplace examples of conduct that would constitute sexual harassment.

The training can be done “live” or electronically as, for example, a webinar, as long as it meets the minimum content standards listed in the law.  If done as a webinar, there must be an interactive component where, for example, the employee is required to answer questions during or after the presentation on what they have just seen.  Both the State and the City are developing, and will have available on their websites, model webinars that can be used by employers.

Employers need to keep a paper or electronic record of each employee having completed the training, as it is the employer’s obligation to assure that it is done.  If an employee refuses, the employer can bring normal disciplinary action against the employee for not complying with a company directive or order.

The New York State Department of Labor, in consultation with the State Division of Human Rights, has established a model sexual harassment prevention policy that can be downloaded at www.ny.gov/programs/combatin-sexual-harassment-workplace. The employer can adopt its own policy, but it must meet or exceed the minimum content standards of the model policy. The State’s model training program can be found at www.ny.2ov/combating-sexual-harassment-
workplace/employers.

MH & H Commentary

Clearly, there is much overlap between New York City and New York State statutes.  This legislative over-kill reflects a rush by politicians to get an easy merit badge in the “# ME TOO” era.  Don’t be confused by the State/City redundancy.  Simply go with a combined content minimum standard, particularly if you are to be conducting business in New York City and are also subject to the jurisdiction of New York State enforcing agencies.

In addition, there is no need to engage expensive consultants to help with basic compliance requirements.  It makes more sense to take advantage of the model policy and training program provided by the City and the State.  These are free of charge and will be readily approved by investigators if you are ever confronted with a compliance investigation.

If you have any remaining questions, as always, feel free to contact us and we will promptly extend the courtesy of a reply.