Employer Policies and Practices

Earlier this year, New York City amended the Earned Safe and Sick Time Act (the “ESSTA”) to provide eligible New York City employees with “safe time” leave and expand the definition of a “family member” under the law.  As a result of the most recent amendments, the New York City Department of Consumer Affairs recently issued amended rules (the “Amended Rules”) and updated Frequently Asked Questions (“FAQs”) for the ESSTA.  Significantly, the Amended Rules, which are currently in effect, impose new requirements on employer ESSTA leave policies.

Under the ESSTA, covered employers must provide their employees, who work more than 80 hours per year in New York City, with up to 40 hours of paid safe and sick leave each year.  Employees either accrue one hour of paid safe and sick leave for every 30 hours worked or receive the full complement of paid safe and sick leave at the beginning of the year.  Employees may use safe and sick leave for absences related to: (1) the employee’s or a family member’s mental or physical illness or injury; (2) the closure of the employee’s workplace, or the school or care facility of the employee’s child, because of a public health emergency; or (3) the employee’s or a family member’s being the victim of a family offense matter, sexual offense, stalking, or human trafficking.  For example, employees may take “safe time” leave for a number of specifically enumerated instances that include, but are not limited to, obtaining services from a domestic violence shelter or rape crisis center, meeting with an attorney to prepare for any court proceeding, filing a complaint with law enforcement, or relocating to increase the safety of the employee or the employee’s family members.  The updated FAQs provide theoretical examples of situations where safe time would or would not be appropriate.

New ESSTA Policy Requirements

Pursuant to the ESSTA, employers must maintain a written ESSTA policy.  The Amended Rules include the following clarifications, amendments, and/or expansions upon the written policy requirement:

  • Merely relying on the DCA’s Notice of Employee Rights, which must be given to new employees upon hire, is not sufficient to meet the written policy requirement.
  • The ESSTA policy must be maintained “in a single writing.” While the Amended Rules do not further elaborate on what constitutes a “single writing,” employers who maintain separate leave policies should ensure that all policies are contained in one document.  For example, employers with employees both inside and outside New York City who use a separate ESSTA addendum to their general leave policies should now include that ESSTA addendum in the employee handbook to ensure compliance with the “single writing” requirement.
  • The policy must clearly set forth: (i) whether employees accrue safe and sick time throughout the year or are frontloaded the time at the beginning of the year; (ii) when the safe and sick time is accrued/frontloaded; and (iii) the rate of accrual and the maximum number of hours an employee may accrue in a year (if the time is not frontloaded).
  • The policy must also include the following requirements/policies (if applicable):
    • A notice requirement to use safe and sick time and the specific procedure for providing notice;
    • Any required written documentation to support the use of safe and sick leave, which may only be requested after three consecutive days of absence;
    • A reasonable minimum increment for using safe and sick leave;
    • The disciplinary policy for the misuse of safe and sick time;
    • The policy for carry-over of unused safe and sick time at the end of each year; and
    • A description of the confidentiality requirements under the ESSTA, which provide that: (1) as a condition of providing safe and sick leave, an employer may not require the disclosure of details relating to an employee’s or a family member’s medical condition or require the disclosure of details relating to an employee’s or a family member’s status as a victim of family offenses, sexual offenses, stalking, or human trafficking and (2) health information about an employee or a family member, and information concerning an employee’s or a family member’s status or perceived status as a victim of family offenses, sexual offenses, stalking, or human trafficking, may only be obtained for purposes of using safe and sick leave. This information will be kept confidential and shall only be disclosed with the written permission of the affected employee or as required by law.
  • If an employer uses a term besides safe and sick time to describe leave provided by the ESSTA, that employer must state that such leave may be used for any of the purposes set forth under the ESSTA without any condition prohibited by the ESSTA.

Further, it is no longer enough for employers to simply post the ESSTA policy.  Employers must now distribute the policy when a new employee begins employment, if an employee requests a copy, and within 14 days before a change to the policy becomes effective.  Any employer that must alter its ESSTA policy to comply with the above requirements must therefore distribute the new policy at least 14 days before the revised policy becomes effective.

As noted above, the recent amendments expand who is a “family member” under the ESSTA.  Specifically, the ESSTA also now provides that a “family member” includes any individual whose close association with the employee is equivalent of a family relationship.  The theoretical examples of family members within the updated FAQs also evidence the fact that the definition of “family member” will be broadly interpreted by the DCA.  As a result, employers should also adopt this broad approach when providing safe and sick leave to their employees.

In sum, employers should carefully review their ESSTA and/or general leave policies to ensure compliance with the new and expanded requirements.

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.

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.

In mid-April of this year, the legal landscape in New York was fundamentally altered when sweeping measures designed to combat sexual harassment were passed by both the State and the City of New York.

Starting with New York State, on April 12, 2018, Governor Andrew Cuomo signed into the law the New York State Budget, which contains several bills designed to prevent sexual harassment in the workplace.  The critical pieces of the New York State Budget addressing sexual harassment include the following:

  1. Effective April 12, 2018, the New York State Human Rights Law is amended to grant sexual harassment protection to non-employees, including contractors, subcontractors, vendors, consultants, and others who provide services under a contract.
  2. Effective July 11, 2018, employers in New York are prohibited from requiring employees to submit their sexual harassment claims to mandatory arbitration, even if agreements to arbitrate such claims were in place prior to the effective date of the law. It is anticipated that employers will challenge this legislation as being preempted by the Federal Arbitration Act.
  3. Also effective July 11, 2018, employers are prohibited from including a non-disclosure provision in settlements agreements for sexual harassment claims. However, where the plaintiff/complainant prefers the inclusion of such a provision, he/she shall have 21 days to consider and accept the non-disclosure/confidentiality provision, and he/she shall then have 7 days to revoke acceptance of the agreement with a confidentially provision once signed.
  4. Starting October 9, 2018, all employers in New York (regardless of size) will be required to adopt a written sexual harassment policy and conduct annual trainings which must be “interactive”. Employers will have the option of adopting the State’s model training program and policy (which will be developed by the Department of Labor, but have not yet been released), or 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. Include information concerning federal and state laws on sexual harassment and remedies available to victims;
    3. Include a model complaint form;
    4. Inform employees of rights and redress available to them and all forums where disputes can be adjudicated; and
    5. State that sexual harassment is a form of employee misconduct and sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and management personnel who knowingly allow such behavior to continue.

Similarly, on April 11, 2018, New York City passed the “Stop Sexual Harassment in NYC Act”, a package of bills designed to combat and prevent sexual harassment in New York City.  The “Stop Sexual Harassment in NYC Act” includes the following bills/provisions:

  1. Effective immediately, the New York City Human Rights Law will apply to all employers in New York City regardless of size with regard to any “unlawful discriminatory practice based on a claim of gender-based harassment…” This stands in contrast to other provisions of the New York City Human Rights Law, which provide protections to employers with 4 or more employees.  The law will also extend the statute of limitations for filing complaints with the New York City Commission on Human Rights (the “Commission”) from 1 year to 3 years.
  2. The Commission will be required to design an anti-harassment rights and responsibilities poster (in both English and Spanish), which New York City employers must display in a conspicuous location. Employers will also be responsible for providing an information sheet to employees on sexual harassment which is distributed at the time of hire and may be included in the employee handbook.  The information sheet shall also be available in English and Spanish.  This provision takes effect 120 days from the law’s signing, provided the Commission takes all appropriate actions.
  3. Effective April 1, 2019, all employers with 15 or more employees in New York City must conduct annual sexual harassment trainings. These trainings must occur within 90 days of hire, must be “interactive”, and employers are required to retain records of attendance for 3 years.  The training must also include:
    1. An explanation of sexual harassment as a form of unlawful discrimination under local law;
    2. A disclaimer that sexual harassment is also a form of unlawful discrimination under state and federal law;
    3. A description of what sexual harassment is;
    4. The complaint process at the various New York agencies and the EEOC;
    5. A provision prohibiting retaliation; and
    6. A statement regarding the importance of by-stander intervention in any incidents of sexual harassment.

While conducting sexual harassment trainings has always been a recommended “best practice” for all employers regardless of location, New York joins only a handful of states including California, Connecticut, and Maine in requiring such trainings.  All New York State employers should ensure that their sexual harassment policies and trainings are firmly in place by the October 9, 2018 deadline.  Additionally, to the extent they have not already complied with the overlapping New York State requirements, all New York City employers should also be prepared to meet the April 1, 2019 deadline for the City’s requirements.