New York State and City Laws Require New Sexual Harassment Policies and Training (and Other Employment Law Developments)

Both the State of New York and New York City have enacted new legislation addressing sexual harassment in the workplace.

Under New York State law, effective October 9, 2018, employers are required to adopt a written sexual harassment prevention policy and institute annual anti-harassment training for employees.

Employers may adopt the State’s model sexual harassment prevention policy or adopt a similar policy that meets or exceeds the minimum standards of the model policy provided under the statute. Such policy must include, among other things, a sexual harassment complaint form and a procedure for the timely and confidential investigation of complaints that ensures due process for all parties.

In addition, every New York State employer is required to provide employees with sexual harassment prevention training. Employers are required to use the model training established by the State or use a training program that meets or exceeds the minimum standards of the model training. The initial training to employees must be completed by October 9, 2019.

In New York City, the Stop Sexual Harassment in NYC Act requires (among other things) employers with 15 or more employees to conduct annual anti-sexual harassment training for all employees. Effective April 2019, employers have one year to implement the training for all employees and must ensure all employees are trained annually thereafter. Employers may also choose to provide their own annual anti-sexual harassment training for employees, provided that it includes certain elements. Some of these elements are not required by New York State: NYC requires the training to include education on “bystander” intervention and to define and provide examples of retaliation.

Unlike New York State, New York City has not yet issued a model training program, although a NYC training program is expected to be available by April 1, 2019. NYC-based employers should be aware that New York State has noted that the NYC Commission on Human Rights is partnering with New York State so that NYC-based employers can meet compliance with both the New York State and New York City training requirements by utilizing the forthcoming online training to be provided by the New York City Commission.

Violations of such NYC law may result in civil penalties of up to $250,000 in the case of a willful violation. The NYC Commission on Human Rights can also assess emotional distress damages and other remedies to the victim, can require the violator to undergo training, and can mandate other remedies such as community service.

Settlements of a Sexual Harassment Claim Containing Non-Disclosure Obligations

By amendments to the CPLR and the New York General Obligations Law, the State of New York has imposed a rigid procedure that must be followed for a settlement of a sexual harassment claim where there will be “any term or condition” requiring non-disclosure of the underlying facts and circumstances of the claim.

Any such term or condition (which could not only be a confidentiality provision but also, e.g., a non-disparagement provision) must be the claimant’s preference. In order to establish that it is the claimant’s preference the following protocol must be followed:

First, the non-disclosure term(s)/condition(s) shall be provided to all parties, and the claimant shall have 21 days to consider it. The 21-day period is un-waivable.

After expiration of the full 21-day period, the claimant’s preference for the non-disclosure provision(s) must be memorialized in a stand-alone agreement signed by all parties.

Then, the claimant has seven days in which the claimant can revoke the stand-alone agreement, which does not become effective until the 7-day period has expired.

If these procedures are not followed, the non-disclosure provision(s) will be unenforceable.

At that point, the parties can proceed to execute a settlement agreement containing the non-disclosure provision(s). (An employer would not want to enter into a settlement agreement before expiration of the 7-day period because the claimant could revoke the stand-alone agreement, resulting in a binding settlement agreement containing unenforceable non-disclosure terms.)

Employers may be reminded of the protocol under the Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWPA), but this protocol for settlement of sexual harassment claims is much different. Under the ADEA/OWPA protocol the claimant need only be given the opportunity to review a release of age discrimination claims for 21 days, and then seven days to revoke. Under that scenario, the claimant almost invariably signs right away (because the claimant wants the settlement payment sooner rather than later), and then the settlement agreement becomes enforceable on the eighth day thereafter (absent timely revocation).

In light of these different protocols, what does an employer do when the employer would like to have a claimant sign both a broad non-disclosure agreement (NDA), including regarding facts and circumstances underlying a sexual harassment claim, as well as a waiver of age claims (asserted or unasserted)? In our view the sequence of events should be as follows: (i) a final, unsigned settlement agreement, containing the NDA, is presented to the claimant; (ii) 21 days later, the claimant signs the stand-alone agreement re: preference; (iii) seven days then must expire before the stand-alone agreement becomes irrevocable; (iv) the parties then execute the settlement agreement; and (v) the claimant then has seven days to revoke the release of age claims (which under most scenarios revokes the entire settlement agreement, because employers do not want to make a settlement payment unless all claims have been extinguished).

NYC Prohibition on Inquiring About Applicants' Salary History or Relying on It in Determining Compensation

Effective on October 31, 2017, the New York City Human Rights Law was amended, making it an unlawful discriminatory practice for an employer (or employment agency) (i) to inquire about the salary history of an applicant for employment, or (ii) to rely on the salary history of an applicant in determining the salary, benefits or other compensation for such applicant during the hiring process, including the negotiation of a contract (the “Salary History Law”). While this law became effective in 2017, it may have been lost in the year-end shuffle and we wanted to draw our readers’ attention to it.

The Salary History Law defines the term “to inquire” broadly as meaning “to communicate any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant’s salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history,” but it does not include informing the applicant in writing or otherwise about the position’s proposed or anticipated salary or salary range.

“Salary history” is defined to include the applicant’s current or prior wage, benefits or other compensation, but does not include any objective measure of the applicant’s productivity such as revenue, sales, or other production reports.

According to the NYC Committee on Civil Rights, the Amendment is meant to help “break the cycle of pay inequity by reducing the likelihood that women will be prejudiced by prior salary levels” (although the Amendment applies to both male and female applicants).

The Amendment includes several notable exceptions. For example, it provides that:

• an employer is not prohibited from, without inquiring about salary history, engaging in discussion with applicants about their expectations with respect to salary, benefits and other compensation, including but not limited to unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant’s resignation from his or her current employer;
• an employer is also not prohibited from attempting to verify an applicant’s disclosure of non-salary related information or conducting a background check, but if such verification or background check reveals the applicant’s salary history, the employer is still prohibited from relying on such salary history as provided above; and
• where an applicant voluntarily and without prompting discloses salary history to the employer, the employer may consider salary history in determining salary, benefits and other compensation for such applicant, and may verify such applicant’s salary history (although in light of the potential for future disputes, if such disclosure is made by an applicant verbally during the interview process, an employer would be well-advised to specifically document in its files at that time that the applicant disclosed such information voluntarily and without prompting).