United States: Significant Compliance Challenges In New York State's Proposed Anti-Sex Harassment Rules: What Can Employers Do Now?

Last Updated: September 11 2018
Article by Eli Freedberg and Devjani H. Mishra

As addressed in our previous ASAP, New York State enacted new legislation in April 2018 targeting workplace sex discrimination and sexual harassment. The new Section 201-G of the State Labor Law will require all companies that have any employees in New York State to promulgate anti-sexual harassment policies, create and distribute a standard internal complaint form for employees to use, and provide annual anti-sexual harassment training for all New York-based employees. These requirements are effective on October 9, 2018.

Recently, Governor Cuomo issued an executive order that includes draft model documents, as well as a draft set of FAQs that elaborate on the statutory requirements. The draft documents are open for public comment through September 12, 2018; thereafter, the State will issue final versions of these models.

Interested employers should take the opportunity to submit comments, because certain aspects of the draft guidance will pose notable compliance challenges and are not necessarily grounded in the language of Section 201-G. For example, the draft documents state, "all employees must complete the model training or a comparable training that meets the minimum standards by January 1, 2019"; "all new employees should complete sexual harassment prevention training within 30 calendar days of their start date;" and "temporary" and "transient" workers must receive training, even if the employee "works for just one day" in New York. However, Section 201-G does not establish January 1, 2019 or any other deadline to complete the training, nor does the statute address a timeframe for training a newly-hired employee. The submission of comments from businesses, which will need to address the practical compliance challenges, may spur New York State to revisit these belatedly-imposed deadlines and adjust the model documents following the comment period.

We have highlighted below several key areas of concern.

Draft FAQs

Most employers are likely to find the draft FAQs the most troublesome and overly broad document the State has published on this issue. Throughout the draft FAQs, the State defines actionable sexual harassment in a way that is broader and more expansive than the legally established definitions. The draft FAQs also set short-term compliance deadlines that are not stated in the text of the statute and which could cause substantial operational difficulties, especially for retailers and hospitality industry employers that are preparing for their busiest seasons.

Some of the most problematic aspects of the draft FAQs include:

  • Question 1 of the draft FAQ defines "sexual harassment." Unfortunately, the draft omits standard provisions that conduct constitutes unlawful "harassment" only if it is severe or pervasive, and is objectively and subjectively unwelcome. The State's draft FAQ would be overly encompassing and capture many forms of unwelcome conduct that does not rise to the current level of sexual harassment. To the extent that this document is intended to help employees understand what behavior is and is not permitted, the FAQ should distinguish examples of conduct that does not constitute unlawful harassment, such as criticizing an employee's work performance for a legitimate reason, or holding an employee to the same standard of timeliness as another employee.
  • The "For Workers" Section of the draft FAQs comprises a page-long roadmap for both employees and non-employees to file a complaint with the New York State Division of Human Rights (NYSDHR). For example, the draft FAQ contains information such as "complaints must be signed before a notary public." Meanwhile, this section barely acknowledges that an employer may have an internal complaint process and that an employee might consider a complaint to the employer as an alternative to litigation. In addition the FAQ suggests the filing of a complaint "simultaneously or subsequently," even though employers are required to maintain and upgrade such internal processes and educate employees about them. As drafted, this Section encourages litigation when it would be sufficient to provide the NYSDHR's website and phone numbers.
  • The same section of the draft FAQs addresses "non-employees in the workplace" in a problematic fashion. The draft is so broadly worded that it arguably establishes strict liability for companies when any employee (even a non-supervisor) harasses a non-employee, though the same standard would not apply if a fellow employee were the object of the harassment. It would be more appropriate for the FAQs to stress that a company cannot be held liable when a non-supervisory employee sexually harasses a non-employee, unless the non-employee has notified the company of the harassment. Further, non-employees should be encouraged to report objectionable conduct to their own employer of record, particularly where the harasser reports to that same employer of record.
  • Question 5 in this Section is also worrisome. It addresses a situation where an independent contractor is subjected to sexual harassment at the contracting party's business site. In this hypothetical scenario, the harasser is the contact person of the business and the independent contractor does not know to whom to complain. The draft FAQ responds that "the business should have informed you how to report such conduct." However, the current legal standard does not require companies to provide independent contractors with anti-sexual harassment policies. This draft provision is troublesome because it suggests the State will take the position that all contractors and vendors who provide service at a work site must be provided with affirmative notice of how to file sexual harassment complaints against the operator of the work site, even if that operator does not employ the accused harasser(s).
  • The "For Employers" Section of the draft FAQs similarly is concerning as it would require employers to train all current employees by January 1, 2019. This deadline does not appear anywhere in the statute. Likewise, the draft FAQ provides that "all employees must complete sexual harassment training within 30 calendar days of starting their job." This requirement also does not appear in the statute, which merely requires employers to train employees annually. Compliance with the January 1 date may be difficult for many employers, particularly where employers have not budgeted the expense for 2018 and for companies that have busy holiday seasons. In addition, the proposed 30-day requirement may prove difficult for employers that rely heavily on temporary or seasonal help and may not have planned to hold training so shortly after onboarding such temporary assistance.1
  • In the "Nondisclosure Agreements" Section of the draft FAQs, the State opines that two separate agreements are required for parties who wish to include a non-disclosure provision in the settlement of a sexual harassment claim. However, there is no basis for this position in the statute; it would be sufficient to offer the claimant a single agreement that includes the proposed confidentiality provision and then provide a non-waivable 21-day consideration period and 7-day revocation period.

Draft Anti-Sexual Harassment Policy and Complaint Form

Like the draft FAQs, the draft model policy and the associated draft complaint form pose significant challenges to employers. The draft model policy provides a definition of sexual harassment, as well as examples of conduct that would constitute actionable sexual harassment, but is inconsistent with federal guidance on the same subject. The draft policy also provides employees with extensive information about their rights if they believe they have experienced sexual harassment, including an in-depth discussion of all forums for adjudicating complaints. The draft policy also imposes additional responsibilities on supervisors. Like the draft FAQs, the draft policy ultimately is overbroad and confusing. For example:

  • Throughout the draft model policy, there is reference to a "zero tolerance" policy for sexual harassment. However, this language is contrary to EEOC guidance, which describes such a policy as "misleading and potentially counterproductive" to the extent that it suggests that all instances of harassment will result in termination of employment. The EEOC notes that "[a]ccountability requires that discipline be proportionate to the offensiveness of the conduct," and that "zero tolerance" language "may contribute to employee under-reporting of harassment, particularly where they do not want a colleague or co-worker to lose their job over relatively minor harassing behavior – they simply want the harassment to stop."2
  • The draft model policy provides that employers will conduct a "confidential investigation" each and every time they receive a complaint about sexual harassment. As most employers know, they cannot guarantee confidentiality of these investigations and cannot control what witnesses will or will not say.
  • The draft model policy provides that all parties involved in a sexual harassment investigation are entitled to "due process" without defining what this means. Taken to its logical conclusion, this provision could mean that an employee terminated for sexual harassment has the right to appeal the decision and thereby undermine at-will employment.
  • The draft model policy provides that non-employees "must follow and uphold this policy," but it is unclear how a business will be able to control the actions of non-employees.
  • Like the draft FAQs, when the draft policy defines a "hostile work environment" it omits any reference to the conduct being severe or pervasive and objectively and subjectively unwelcome. This definition significantly broadens the scope of behavior that could be characterized as sexual harassment from the current federal standard.
  • Likewise, the draft model policy significantly expands the definition of "retaliation." It is well established that to support a claim of retaliation an employee must allege that the employer engaged in a "materially adverse action" that "might well deter a reasonable employee from complaining about discrimination." Instead of using the materially adverse action standard, New York State has replaced it with "any action" in the proposed model policy, which would effectively encompass legitimate performance criticism and other non-retaliatory but negative actions.
  • The draft model policy would require an inflexible 30-day limit for completing investigations of sexual harassment claims. This requirement does not appear in the statute, is needlessly rigid, and depending on the circumstance, potentially impractical. This arbitrary deadline could defeat the purpose of protecting the complaining employee and thwart effective and thorough investigations, particularly if the employer is faced with multiple complainants and witnesses to the same alleged harassment.
  • The draft model policy requires employers to keep records concerning investigation of sexual harassment complaints, apparently indefinitely. The statute does not require employers to keep these records, and retaining such records indefinitely may have adverse consequences for employers in litigation, especially when the employees involved have long since left employment and another employee attempts to gain access to such materials. This requirement also may be inconsistent with reasonable record retention policies.
  • The draft model policy devotes over two pages to methods of reporting and filing sexual harassment claims, including contacting the local police where physical contact is at issue. This far-reaching roadmap is not required by the statute and should be streamlined to eliminate references to administrative agencies' procedures for conducting investigations, which is within the agencies' purview. Aspects of the model policy are not proper subjects for employer policies.
  • The draft "Complaint Form for Reporting Sexual Harassment" is highly problematic as well as overly complicated. First, it repeatedly asks the complainant to describe "the sexual harassment," (e.g., "Is the sexual harassment continuing?"). This language implies that all complained-of conduct automatically is considered sexual harassment, even if an investigation does not substantiate this conclusion. Second, based on draft question 6, the draft form apparently is intended to be used even if an employee has filed a claim regarding the same conduct with an agency or in court; however, it may be inappropriate to perform an internal investigation and report back to the complainant if such a proceeding on the same subject is pending before the agency or a court. Importantly, the statute requires only a "standard complaint form" that an employer will accept as a basis to begin an investigation. Employers are advised to use a simple form that asks the complainant to describe the reasons for the complaint and seeks basic information, rather than assuming the alleged conduct is unlawful before any investigation has occurred or pre-empting a thorough investigation by seeking too much detail in advance. Thus, the draft form is not consistent with the statutory requirements.

Draft Training Model

The model training program appears to have been put together more thoughtfully than some of the other models. For example, the material includes a useful description of "interactive training," which the statute did not define, and suggests that investigations should be completed within a "reasonable time, for example, within 30 days," rather than mandating 30 days for completion as the model policy purports to do. The draft training Instructions also suggest that employers "should" complete training for all employees by December 31, 2018, and for new hires within 30 days of hire, but do not attempt to mandate these deadlines as the other materials do. However, New York State's proposed anti-sexual harassment training model does have some notable substantive deficiencies:

  • Like other model documents, the model training program includes a "Zero Tolerance" policy toward harassment which is problematic for the reasons discussed above.3
  • The program Instructions suggest at page 2 that "Employers should provide employees with training in the language that is spoken by their employees." As with the model policy, this is a suggestion, but is not required by the underlying statute. While providing training (or any other materials) to employees in the language in which they are most comfortable is a laudable goal, it may also be unduly expensive and difficult to achieve, particularly for smaller employers or in cases where only one or two employees speak a given language. Employers that choose to take on this challenge should make sure that any materials provided in other languages are of the same quality as their English-language materials.
  • The model training program's definition of "hostile work environment" is under-inclusive as it focuses on offensive displays and bullying, but does not include any discussion of unwelcome sexual attention or inherent power dynamics, which have been a major focus of attention as a result of the #MeToo movement and certainly could form the basis of a hostile work environment claim. In this sense, the training is incomplete.
  • Although the model training program includes a section on Sex Stereotyping, the program language ironically perpetuates certain stereotypes itself, by: using terms such as "victim" and "harassed individual," rather than "complainant"; nominally referring to transgender discrimination, but using only binary gender language ("either sex," "opposite sex"); and providing 6 training scenarios, 5 of which involve males allegedly harassing females. It is important that training programs do not themselves reinforce gender stereotypes, and it would be helpful if the State's model provided greater guidance to employers in this respect.

We expect that numerous employee rights organizations will be submitting comments, either praising the model forms or even requesting expansion of the protections. It is therefore incumbent on the business community to submit its own comments, emphasizing the inconsistencies in the various documents, and the areas where it would be difficult or impractical to implement the required changes. The agencies reviewing the comments will be required to adopt final versions of the forms on or before the effective date of the law, which is October 9, 2018. This means that the agencies will only have a few weeks to review the comments and issue their final decisions.4

Footnotes

1 Notably, New York City took a very different approach to new hires with its training requirement, which applies after employees have completed 90 days of employment. The New York City approach presumably would be superseded by a statewide 30-day rule, assuming that one is ultimately adopted following the comment period.

2 U.S. Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace, at Section 3.B (June 2016), available at https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm.

3 Id. at Section 3.B.

4 Parties interested in submitting comments can do so on their own or employ the assistance of counsel in drafting input. Please contact the authors of this article with any questions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Eli Freedberg
Devjani H. Mishra
Similar Articles
Relevancy Powered by MondaqAI
Ford & Harrison LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Ford & Harrison LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions