Harassment, Discrimination and Retaliation

As we previously reported, New York State launched the Combating Sexual Harassment in the Workplace website in August 2018 to host resources for employers and employees about the new legal obligations arising from the New York State Budget.  The website originally contained draft model sexual harassment prevention training and policy materials, but New York State has just issued the final versions of the documents, which are now publicly available through the website.  In addition, the website contains finalized FAQs and additional guidance on the new laws, including an “Employer Toolkit”, which provides employers with “step-by-step guidance” to implement the required policy and training program.

The final documents come only several days in advance of the October 9, 2018 deadline by which all New York State employers must adopt written sexual harassment policies and begin to implement annual sexual harassment training for employees.

Model Sexual Harassment Prevention Policy

By the October 9, 2018 deadline, New York employers must adopt written sexual harassment policies that meet the new legal requirements under the New York State Budget.  Employers have a choice in either adopting the State’s model policy and complaint form or implementing their own policy and complaint form, which must meet or exceed the minimum standards set forth by the new law.  Notably, all employees must be given a copy of the policy and it is suggested that the policy should be written in a language spoken by the employees.

To aid employers that would like to craft their own policies, the State issued guidance outlining the minimum standards to which the policy must adhere.  Specifically, the policy must:

  • Prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  • 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.

As noted above, an employer that adopts their own policy must provide an overview of their investigative procedures within their policy.  The final FAQs note that an employer need not adopt the investigative procedures set forth in the State model policy as long as the procedures meet the minimum standards listed above.  Moreover, a complaint form is not required to be included in the policy itself, but employees must be notified where the form may be found.

Notably, the final FAQs also state that employers must provide employees with a copy of the policy in writing or electronically.  If the policy is made available to employees electronically, employees must be able to print a copy for their records.

Model Sexual Harassment Prevention Training

Starting on October 9, 2018, the New York State Budget also requires employers to provide all employees with sexual harassment training on an annual basis.  While the draft materials previously indicated that all employees must complete the first round of training by January 1, 2019, the final State guidance extends that deadline to October 9, 2019.  Moreover, the final materials relaxed the training requirement for new employees.  Specifically, the draft guidance stated that new employees must complete their sexual harassment training within 30 calendar days of their start date.  Now, the final guidance requires new employees to receive training “as soon as possible” after their start date.

According to the final FAQs, employees who only “work[] a portion of their time in New York State, even if they’re based in another state” must also receive annual training.  This requirement is overall less burdensome than the original draft FAQs, which provided that any employee must receive training even if “someone just works for one day for the employer, or if someone works for just one day in NY.”

To comply with the new law, employers must either adopt the State’s model training slides, script, and/or case studies or implement live training or interactive online/video training that meets or exceeds the minimum standards set forth by the new law.  Specifically, at a minimum, the training must:

  • Be interactive;
  • Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  • 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.

As denoted by the final FAQs, employers crafting their own training policy do not need to include the sections of the model training that are “not expressly required in the law[,]” but covering the information is still “strongly recommended.”

According to the State guidance, employers should provide employees with training in the language spoken by their employees.  State-issued Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish, and Haitian-Creole versions of the final training materials are forthcoming.

Some additional significant changes that the State made to the draft training documents and related training FAQs include:

  • The final FAQs provide that there is no minimum number of hours an employer must spend training its employees.
  • The final FAQs make clear that while there is no duty to train third-party vendors, contractors, or other non-employees who provide services to the employer in the workplace (either on a one-time or regular basis), the State still encourages employers “to provide the policy and training to anyone providing services in the workplace.”
  • The final FAQs clearly state that employers must make all of their employees aware of the additional requirements for those in managerial/supervisory roles.
  • Employers are permitted to “take appropriate administrative remedies” when faced with an employee who fails to complete the training.
  • The final FAQs further elaborate upon the meaning of “interactive training” by stating that merely watching a training video or reading a document, with no feedback mechanism or interaction, is not “interactive.” Instead, the guidance provides the following examples of interactive trainings:
    • 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; or
    • Web-based or in-person trainings that provide a feedback survey for employees to turn in after they have completed the training.
  • While a live trainer is not required under the New York State Budget, the final State guidance emphasizes bringing in a live trainer is “a best practice for effective and engaging trainings[.]”

The website also provides additional clarifying information about laws regarding mandatory arbitration and nondisclosure provisions.

Concluding Employer Considerations

The October 9, 2018 deadline is quickly approaching and employers should take immediate action to ensure that their sexual harassment policies are in compliance with the new legal obligations or alternatively choose to adopt the State’s model policy.  Further, although the first training deadline is not until October 9, 2019, employers should begin deciding how they will fulfill their training obligations.  Employers should particularly consider whether to retain counsel to serve as live trainers for their workforces to ensure compliance with the new training requirement.

Further, as previously reported, New York City employers must also comply with the new Stop Sexual Harassment in NYC Act, which imposes its own set of specific training requirements for employers with 15 or more employees beginning on April 1, 2019.  The New York City Commission on Human Rights is in the process of creating an online module that employers may use at no charge to comply with the new law, but it is unclear when this module will be ready.  Employers should consult with counsel to ensure compliance with both laws.

On August 23, 2018, New Jersey’s intermediate appellate court in Roman v. Bergen Logistics, LLC et al., ruled that employers could not contractually limit the remedies available for successful employment discrimination claims.  In that case, the plaintiff-employee and defendant-employer had signed an arbitration agreement at the time of the employee’s hiring.  The agreement provided that all employment-related claims, including statutory claims, would be resolved exclusively by final and binding arbitration.  Further, the agreement waived the plaintiff-employee’s right to collect punitive damages.

Subsequently, the plaintiff-employee sued her employer alleging claims for sexual harassment under New Jersey’s Law Against Discrimination (“LAD”).   In the trial court, the defendant-employer successfully obtained dismissal of the action based upon the arbitration agreement.  However, on appeal, the court ruled that the portion of the agreement purporting to limit the employee’s ability to recover punitive damages was unenforceable, reasoning that the availability of punitive damages served important public policy interests under the LAD: to deter misconduct and punish the wrongdoer. The appellate court therefore dismissed the action based upon the employee’s agreement to arbitrate any dispute, but invalidated the damages limitation as to the employee’s LAD-based claims so that, in any subsequent arbitration, the employee would be able to recover punitive damages.

The court’s ruling is consistent with a notable trend in New Jersey law, whereby courts uphold the parties’ freedom of contract but limit or invalidate portions of arbitration agreements on public policy grounds to the extent they impinge upon statutorily-granted rights under the LAD.  For example, in Rodriguez v. Raymours Furniture Co., 225 N.J. 343 (2006), the State’s highest court concluded that a provision in an employment application, purporting to require the employee to file any employment-based claim within six-months, was unenforceable as to the employee’s LAD-based claim.  The Court explained that, supplanting the applicable two-year statute of limitations for LAD claims with a mere six-month window effectively denied the employee important substantive rights provided by the statute.

New Jersey-based employers should review and potentially modify their current employment contracts to ensure that they are consistent with this current trend in the law.  While agreements to submit disputes to binding arbitration – including employment discrimination claims – will generally be upheld, limitations on substantive rights and remedies conferred by the LAD will likely be deemed unenforceable.

Last week, New York State launched a new website that houses significant resources for employers and employees about the new legal obligations arising from the New York State Budget.  The Combatting Sexual Harassment in the Workplace website includes draft model sexual harassment prevention training and policy materials that will be open for public comment through September 12, 2018.  Upon finalization of the documents, which will occur at an unknown later date, employers may use the materials to satisfy their obligations under the new law.

As we previously reported, the New York State Budget contains several bills designed to prevent sexual harassment in the workplace.  The new website contains guidance and draft materials relating to each of the significant components of the law.  In addition to hosting drafts of the model sexual harassment training and policy, the website contains draft FAQs related to nondisclosure and mandatory arbitration clauses.

Draft Model Sexual Harassment Prevention Policy

Effective October 9, 2018, New York employers must adopt written sexual harassment policies.  New York released the draft model policy that employers may choose to enact after the policy has been finalized to comply with the new law.

Some notable aspects of the draft model policy and the associated FAQs include:

  • An explicit statement that the policy applies to “all employees, applicants for employment, interns, whether paid or unpaid, contractors and persons conducting business” with the employer;
  • A requirement that the policy must be posted in all work locations and provided to employees upon hiring;
  • A requirement that managers and supervisors report any harassment complaint or any harassment that they observe;
  • A statement that an investigation of a harassment complaint “should be completed within 30 days”; and
  • An explanation of the various steps for an investigation, which include: (1) conducting an “immediate review of allegations,” taking any appropriate interim actions, and encouraging the complainant to complete a written complaint form (or if he/she refuses, prepare a complaint form based on the oral complaint); (2) taking steps to preserve any potentially relevant documents or emails; (3) reviewing all relevant documents; (4) interviewing all of the parties involved (including witnesses); (5) creating written documentation of the investigation; (6) retaining the written documentation for the employer’s records; (7) promptly notifying the complainant and alleged harasser of the final determination of the investigation; and (8) notifying the complainant of his/her right to file a complaint or lawsuit pursuant to local, state, and federal law.

Alternatively, employers may choose to adopt their own sexual harassment policies.  At a minimum, the policy must: (1) prohibit sexual harassment consistent with guidance issued by the New York Department of Labor in consultation with the Division of Human Rights and provide examples of prohibited conduct; (2) clearly state that sexual harassment is a form of employee misconduct and individuals engaging in sexual harassment and supervisory personnel who knowingly allow such behavior will be disciplined; (3) include information regarding federal and state laws on sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be additional applicable local laws; (4) include a model complaint form; (5) include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties; (6) inform employees of their rights of redress and the forums where disputes can be adjudicated both administratively and judicially; and (7) clearly state that retaliation against individuals who complain of sexual harassment or who assist in any investigation or proceeding involving sexual harassment is unlawful.

Notably, the website also contains a draft model complaint form that employers may use to gather information from the complainant.

Draft Model Sexual Harassment Prevention Training

The New York State Budget also requires employers to provide employees with sexual harassment training on an annual basis, starting on October 9, 2018.  Although the law is silent as to when employers must complete the first round of annual training, the draft materials indicate that all employees must complete the training by January 1, 2019.  This is a new development that employers must be prepared to meet, especially in light of the fact that the model training materials are still in draft form until further notice.  Additionally, all new employees must complete their sexual harassment training within 30 calendar days of their start date.

Currently, the draft model training document only includes general instructions for employers, a script for in-person group training, and a list of the minimum training standards that employers must meet if they decide not to use the model training program.  As indicated by the website, a model PowerPoint presentation and video presentation are forthcoming.

The draft model training materials (including the associated FAQs), also indicate that all employees (including temporary and transient employees) must receive training even if “someone just works for one day for the employer, or if someone works for just one day in NY.”  Further, the FAQs explain that a new employee may be considered trained if the employee’s former employer used the “same unmodified state model training or one of similar substance,” but also suggests that “even if the same training is used, [employers] may still wish to train new employees to [their] standards.”

If an employer chooses not to use the model sexual harassment training, the training must at minimum: (1) be interactive; (2) provide an explanation of sexual harassment as set forth in guidance issued by the New York Department of Labor in consultation with the Division of Human Rights; (3) include examples of sexual harassment; (4) include information regarding relevant federal and state laws and remedies available to victims of sexual harassment; (5) provide information regarding employees’ rights of redress and the available forums for adjudicating complaints; and (6) include information regarding supervisor conduct and supervisor responsibilities.  As noted within the FAQs, “interactive” means training that may: (1) be web-based with questions asked of employees; (2) accommodate questions asked by employees; (3) include a live trainer who can answer any questions; and/or (4) require feedback from employees about the training program.

Draft FAQs on Mandatory Arbitration and Nondisclosure Clauses

The new website also includes information relating to the current prohibition against (1) using nondisclosure clauses in settlements or agreements concerning claims of sexual harassment (unless requested by the plaintiff/complainant) and (2) requiring employees to submit sexual harassment claims to mandatory arbitration.

With regard to the use of nondisclosure clauses, the draft FAQs detail how parties should memorialize the plaintiff/complainant’s preference to include such a provision.  Namely, the employer must first enter into a separate agreement with the plaintiff/complainant indicating the plaintiff/complainant’s preference to include the nondisclosure clause (which is subject to a 21-day consideration period and 7-day revocation period) and only then may the actual agreement containing the nondisclosure language (and all other terms) be lawfully executed.

The draft FAQs do not contain any significant developments concerning the prohibition on mandatory arbitration clauses.

New York City Employers

Overall, employers should be prepared to meet the deadlines listed above – although all of the guidance is currently in draft form so it’s possible for the deadlines to be altered following the comment period – and consult with counsel regarding requirements under the new law.  Further, as previously reported, New York City employers must also comply with the new Stop Sexual Harassment in NYC Act, which notably imposes its own set of specific training requirements for employers with 15 or more employees beginning on April 1, 2019.  The New York City Commission on Human Rights will create an online module that employers may use at no charge to comply with the new law, but it is unclear when this module will be ready.  Employers should consult with counsel to ensure compliance with both laws.

New York City Requirements

The New York City Commission on Human Rights (the “Commission”) recently issued a notice and information sheet that all New York City employers are required to post and provide to new employees by September 6, 2018.

As previously blogged, on May 9, 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act (the “Act”) in an effort to combat and prevent sexual harassment in the workplace. The Act applies to all New York City employers (regardless of size) with regard to discrimination claims arising out of gender-based harassment.  Several significant components of the Act include:

  • Beginning April 1, 2019, employers with 15 or more employees in New York City must conduct annual sexual harassment training for all employees and within 90 days of an employee’s hire;
  • Extending the statute of limitations for filing complaints of gender-based harassment with the Commission from 1 year to 3 years; and
  • Requiring all employers to post an anti-sexual harassment rights and responsibilities notice and also to distribute an information sheet to new employees on sexual harassment.

With regard to the new training requirement, the Commission will create an online module that employers may use at no charge to comply with the Act.  It is unclear when this module will be ready.

Pursuant to the above, the Commission issued the mandatory posting notice, which all employers must conspicuously display. The Act requires employers to display the notice in both English and Spanish, but only the English version of the notice has been published by the Commission.  The Spanish version of the notice is forthcoming.

Further, the Commission released the informational fact sheet that must be distributed to employees at the time of hire.  To comply with this requirement, employers may either provide this information sheet to new employees as a separate document or incorporate it into an employee handbook.

In light of the above, New York City employers should ensure to post the notice and also be prepared to distribute the fact sheet to all new hires before the September 6, 2018 deadline.  Employers should also be prepared to implement an anti-sexual harassment training program by April 1, 2019.

New York State Law

Finally, all New York employers should also keep in mind the new legal obligations arising from the New York State Budget.  Last April, Governor Andrew Cuomo signed into law the New York State Budget containing several bills designed to prevent sexual harassment in the workplace.  To date, New York employers are now prohibited from using nondisclosure clauses relating to claims of sexual harassment in settlements or other agreements (unless the plaintiff/complainant prefers to include such a provision) and may not require employees to submit sexual harassment claims to mandatory arbitration.  Notably, all New York employers must adopt a written anti-sexual harassment policy by October 9, 2018. On that same date, employers must also begin conducting annual interactive sexual harassment training.

The New York Department of Labor and Division of Human Rights will issue a model sexual harassment prevention policy and model sexual harassment prevention training program that employers may choose to adopt.  Alternatively, employers can create their own policy and training program, which must equal or exceed the State’s requirements.  At a minimum, the policy must: (1) prohibit sexual harassment and provide examples of prohibited conduct; (2) provide that sexual harassment is a form of employee misconduct and individuals engaging in sexual harassment and supervisory personnel who knowingly allow such behavior will be disciplined; (3) include information regarding federal and state laws on sexual harassment and remedies available to victims; (4) include a model complaint form; and (5) inform employees of forums where disputes can be adjudicated and the available remedies.  The sexual harassment training must, at the very least, cover: (1) an explanation of sexual harassment and examples of prohibited conduct; (2) federal and state laws regarding sexual harassment and the remedies available to victims; (3) supervisor conduct and their added responsibilities; and (4) employees’ rights and the various forums available for adjudicating complaints.

Employers should consult with counsel regarding the new employer obligations under the Act and the New York State Budget to ensure compliance with both laws.  Now more than ever, it is imperative for employers to have comprehensive written anti-sexual harassment policies and robust training programs.

Over the past several weeks, New Jersey has enacted, or plans on passing, several new bills that secure New Jersey’s position as one of the nation’s leaders in employee protections.  The first, known as the Diane B. Allen Equal Pay Act (“Pay Equity Bill”), bans employers from paying women and other protected groups less than men for similar work.  The second, the New Jersey Paid Sick Leave Act (“Paid Sick Bill”), essentially guarantees all private employees, regardless of company size, paid sick leave/time off for certain qualifying situations.

New Jersey Pay Equity Bill

As previously blogged, on Equal Pay Day (April 10th), Governor Phil Murphy announced he would sign legislation known as the Diane B. Allen Act later that month.  On April 24, 2018, Governor Murphy signed what is considered to be the “most sweeping equal pay legislation in the nation.”

In short, the new law prohibits employers from paying any member of any protected class under the New Jersey Law Against Discrimination lower wages and benefits than their male counterparts.  If an employer pays one person more than another for “substantially similar work”, that employer will have to establish the basis for the pay discrepancy.  New Jersey’s law is for broader protections than other states in that it is not limited to gender only.  Damages for a successful claim include three (3) times the monetary damage for the violation in addition to back wages for up to six (6) years.  Critics of the new law have expressed concern that it departs from the federal standards and makes New Jersey unfriendly to businesses, especially in light of recent changes in the Federal Tax Code.

The Pay Equity Bill becomes effective July 1, 2018.

New Jersey Paid Sick Bill

Governor Murphy also recently pledged to sign the New Jersey Paid Sick Leave Act on May 2, 2018, which will make New Jersey the 10th state with paid sick leave legislation.

Once signed, all private businesses, despite their size, that employ individuals in the State are required to comply with the Paid Sick Bill.  Unlike other legislation, there is no minimum number of hours an employee must work to be eligible for leave under the new law.

Leave can be used for an employee’s own qualifying need or that of a family member,  which is defined to include children, grandchildren, siblings, spouses, domestic partners, civil union partners, parents, and grandparents.  The definition of a “family member” also extends to any individual whose affiliation with the employee is the “equivalent of a family relationship.”  Leave may be used for, among other things: (1) the diagnosis, treatment, recovery, or preventative care of a mental or physical illness(s); (2) to seek counseling, relocation, legal services, and/or medical attention for an employee or family member that is a victim of domestic or sexual violence; and/or (3) to attend a school conference, meeting, or other child-education related event.  In some instances, advance written notice to the employer of the employee’s intention to take paid leave may be required.

Under the legislation, leave begins to accrue on the later of the employment date or the law’s effective date (currently anticipated to go into effect on October 29, 2018) at a rate of one (1) hour for every 30 hours worked. The law does not require employers to allow employees to accrue more than 40 leave hours in a consecutive 12 month period, with such period to be determined by the employer.

Alternatively, employers can provide employees with 40 leave hours on the first day of the benefit year as an alternative to accruing time.  If employers “front load” such leave, employees may carry over accrued but unused leave or employers must offer employees compensation for unused leave by the end of that benefit year.

Employers should consult with an attorney regarding the anticipated employer notice, posting, and record keeping requirements associated with the Paid Sick Bill, as well as determining employee eligibility and duration of waiting periods that may be implemented before leave can be used.