United States: New York State Division Of Human Rights Issues Further Guidance On The Recent Amendments To Anti-Discrimination And Anti-Harassment Laws

Seyfarth Synopsis: The New York State Division of Human Rights has issued guidance concerning two aspects of the recently amended anti-discrimination law in New York: (1) the "notice" employers are required to distribute at the time of hire and at each annual sexual harassment training; and (2) the prohibition on nondisclosure agreements settling claims of discrimination unless confidentiality is the preference of the complainant. 

In June of this year, the New York State Legislature passed legislation amending New York's anti-discrimination and sexual harassment laws, and on August 12, 2019 Governor Cuomo signed it into law. (See our prior alerts here and here). Recently, the New York State Division of Human Rights (the "Division") issued additional guidance in the form of FAQs concerning two aspects of the law: (1) the required notice; and (2) nondisclosure agreements settling claims of discrimination.

Notice

The text of the law requires employers to provide employees with a written notice, both "at the time of hiring and during every annual sexual harassment prevention training," that contains the "employer's sexual harassment prevention policy and the information presented at such employer's sexual harassment prevention training program." The Notice must be provided in English and in the language identified by any employee as their primary language (provided the State's model exists in that language).

The Division's guidance clarifies that the Notice must be in writing, but that it can be printed in hard copy or provided digitally, i.e., by email. The Notice must link to or attach a copy of: (i) the employer's compliant anti-sexual harassment policy and (ii) it's "training materials." The training materials include "any printed materials, scripts, Q&As, outlines, handouts, PowerPoint slides, etc." If training is provided by software or video, the FAQs instruct that employers "should make reasonable efforts to provide the information." Finally, the FAQs recommend that employers should provide the notice prior to or on the first day an employee works after being hired. Seyfarth Shaw LLP and its attorneys are available to assist employers with determining the best way to implement this requirement in light of the employer's specific training format. 

The Division has also published a "model" notice for employers to use as guidance.¹

Non-Disclosure Agreements ("NDAs")

Last year, New York amended the General Obligations Law and the Civil Practice Laws and Rules to prohibit employers from including NDAs in settlement agreements resolving claims of sexual harassment (unless confidentiality was the claimant's preference). The legislation passed in August extended that prohibition to all claims of discrimination. The law only prohibits NDAs that "would prevent the disclosure of the underlying facts and circumstances to the claim or action," and does not affect an employer's right to prohibit disclosure of the fact of the agreement or of the settlement amount. The law also includes an exception if confidentiality is the complainant's preference. 

In that circumstance, the parties may agree to include an NDA that prohibits disclosure of the underlying facts and circumstances of the claim. 

While the FAQs previously established a three-step process to memorialize that confidentiality was the complainant's preference in claims involving sexual harassment, the guidance has now been extended to discrimination claims. Specifically, the FAQs require that the term or condition of confidentiality "be provided in writing to all parties in plain English, and, if applicable, the primary language of the person who complained, and the person who complained shall have 21 days from the date such term or condition is provided to consider such term or condition." If after 21 days, such term or condition is the preference of the person who complained, the preference must be memorialized in an agreement signed by all parties. For 7 days following the execution of the agreement containing the term or condition, the person who complained may revoke the agreement and it will not become effective or enforceable until after the revocation period expires. Neither the 21 day period nor the 7 day period may be waived, nor can these periods overlap. 

Even where the parties agree to include an NDA that prohibits disclosure of the underlying facts and circumstances of the claim, the provision will be deemed void to the extent that it "prohibits or otherwise restricts the complainant from: (i) initiating, testifying, assisting, complying with a subpoena, or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (ii) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled."

Employer Takeaways

Employers should immediately ensure that they are meeting these requirements. As always, Seyfarth Shaw LLP and its attorneys are available to assist employers with ensuring compliance.

Footnotes

1. At the time of publication, the "Notice" is referred to on the Division's webpage as an optional "Sexual Harassment Prevention Poster." This version of the notice also attaches the model complaint form and includes contact information for the person to whom complaints can be directed.

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.