All employers in New York state are required to adopt a new model sexual harassment policy and training regimen starting Oct. 9.
According to the state’s model, as part of a law Gov. Andrew Cuomo signed in April, policies must include examples of sexual harassment; indicate procedures for reporting and investigating claims; and clearly state that there will be penalties for employees who engage in sexual harassment and for supervisors or managers who knowingly allowed sexual harassment to continue, as well as other requirements. The training, either web-based or live, must have a question section or other interactive feature.
As long as employers are proactive, the model policy and training shouldn’t be challenging for them to adopt, Rachel Cowen, a partner at law firm McDermott Will & Emery, said.
“I think most clients will figure out how to implement it, how to launch it, and once it gets rolling, it will be seamless,” she said.
One thing New York City employers will have to be careful about, however, is that they must meet both the state’s and the city’s requirements.
“Not only do they have to be vigilant to comply with state obligations, there’s also some specific city obligations that apply, as well,” Marissa Mastroianni, an associate attorney at Cole Schotz, said.
For example, the city requires employers to provide information on bystander intervention, which is not included in the state law.
There are also two clauses in the state’s law — bans on mandatory arbitration and nondisclosure agreements — that are not in the city’s law, Cowen said. Both clauses went into effect in July and are explained in an updated “frequently asked questions” page on the governor’s website.
The ban on mandatory arbitration means contracts can’t prevent employees from going to court over a claim. And the nondisclosure agreement ban prevents employers from requiring confidentiality as part of a settlement or other agreement unless the employee who made the complaint wants the incident to be kept confidential.
“It has been standard practice to have a confidentiality agreement in a settlement agreement when you resolve these claims,” Cowen said. “This kind of changes the game … it can make it potentially more challenging to settle claims because they are gonna be more public.”
The employee who reported the sexual harassment first has 21 days to consider if they want a nondisclosure agreement. And even after they sign an agreement, they have seven more days to revoke it.
“There’s not too many states out there that have passed a law like this before,” Mastroianni said.
