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EVERFI/JL Webinar: New Sexual Harassment Training Mandates in New York
1. April 26, 2018
New Sexual Harassment Mandates
in New York: What employers
should know and do now
Preston Clark, J.D.
President,
EVERFI
Samia Kirmani
Principal,
Jackson Lewis P.C.
2. Your Presenters
Experienced, management-side
employment lawyer focused on advice
as counsel and training at national
workplace law firm, Jackson Lewis
President of EVERFI’s Conduct & Culture
division that powers online compliance
training programs for over 1,500
organizations worldwide. Preston was
formerly Assistant General Counsel for
the University of Miami.
Samia M. Kirmani
Principal and Co-Leader of
Training Practice Group,
Jackson Lewis P.C.
Preston Clark, J.D.
President at EVERFI
3. Webinar Basics
1 Please ask questions
2 Full presentation will be sent out immediately following event
3 Webinar recording will be sent out next week
4 Post webinar communication plan
5. • Represents management exclusively in every aspect of employment, benefits,
labor, and immigration law and related litigation, as well as government
relations in NYS & NYC.
• Over 850 attorneys in 57 locations nationwide.
• Current caseload of over 6,500 litigations, approximately 650 class actions.
• Founding member of L&E Global.
• A leader in educating employers about the laws of equal opportunity, Jackson
Lewis understands the importance of having a workforce that reflects the
various Communities it serves.
About Jackson Lewis P.C.
6. Jackson Lewis P.C. has prepared the materials contained in
this presentation for the participants’ reference and general
information in connection with education seminars presented
by the firm and its attorneys. Attendees should consult with
counsel before taking any actions that could affect their legal
rights and should not consider these materials or discussions
about these materials to be legal or other advice regarding
any specific matter.
Lawyer’s Disclaimer
8. • Characteristic of state and local measures to attack wider problems
• Create a patchwork of legal obligations
• e.g., Washington state law
• State initiatives from California to Massachusetts
– Training requirements (SB 1300 and SB 1343)
– Limits on use of arbitration agreements for sexual harassment claims
– Limits on use of confidentiality agreements for sexual harassment claims
– All similar, but just different enough . . .
NY Not Alone
10. • April 12, 2018: Signed by Governor Andrew Cuomo
• Immediate: “non-employees,” including contractors, subcontractors, vendors, consultants, and
other persons providing services pursuant to a contract now protected under the NYS Human
Rights law
• July 11, 2018: Prohibitions on use of nondisclosure provisions in settlements or arbitration
agreements relating to sexual harassment claims
• October 9, 2018: Deadline by which mandatory, written anti-harassment policies must be
distributed, based on model to be published by NYS Department of Labor and Division of
Human Rights
• October 9, 2018: Mandatory training for ALL employees, which is consistent with models
developed and published by the NYS Department of Labor and Division of Human Rights
• January 1, 2019: Bids on certain state contracts must contain language affirming that the
bidder implemented compliant policies and training
NY State Law Overview and Deadlines
11. • Subpart F amends the Executive Law to add a new section 296-d:
• Effective date: immediate, April 12, 2018 (date signed by Governor Cuomo)
• Non-employees now covered
• Employer may be held liable to a non-employee who is a “contractor,
subcontractor, vendor, consultant or other person providing services pursuant
to a contract in the workplace or who is an employee of such contractor,
subcontractor, vendor, consultant or other person providing services pursuant
to a contract in the workplace, with respect to sexual harassment
• When the employer, its agents or supervisors knew or should have known that
such non-employee was subjected to sexual harassment and the employer
failed to take immediate and appropriate corrective action
NYS Expanded Coverage
12. • Subpart D amends General Obligations Law to add a new 5-336 and the CPLR
to add a new 5003-b
• July 11, 2018 effective date (90 days)
• Prohibition on including in any settlement, agreement or other resolution of
any claim, “the factual foundation of which involves sexual harassment, any
term or condition that would prevent the disclosure of the underlying facts
and circumstances to the claim or action unless the condition of confidentiality
is the complainant’s preference . . .”
• 21 days to consider
• 7 days to revoke
NYS Nondisclosure Agreement Prohibitions
13. • Subpart B amends CPLR to add new section 7515:
• July 11, 2018 effective date (90 days)
• Prohibited clause = mandatory arbitration provision of any contract to resolve any
allegation or claim of unlawful discriminatory practice of sexual harassment null
and void
• “Except where inconsistent with federal law, no written contract entered into on
or after the effective date” shall contain the “prohibited clause”
– FAA preemption?
• Inclusion of prohibited clause does not impair the enforceability of any other clause
• CBA exception
NYS Arbitration Agreement Prohibitions
14. • Department of Labor shall consult with Division of Human Rights
to create and publish model sexual harassment prevention
guidance document and policy
• Every employer shall adopt the model policy or a policy that
equals or exceeds minimum standards in the model
• Provide to all employees in writing
• Department and Division shall post on their websites
NYS Model Policy Requirements
15. • Explanation of sexual harassment with examples of
unlawful sexual harassment
• Federal and state statutory provisions and remedies
• Standard complaint form
• Procedure for the timely and confidential investigation of
complaints and ensure due process for all involved parties
NYS Model Policy Minimum Requirements
16. • Rights of redress and all available forums for adjudicating sexual
harassment complaints administratively and judicially
• State that sexual harassment is considered a form of employee
misconduct and that sanctions will be enforced against
individuals engaged in sexual harassment and against supervisory
and managerial personnel who knowingly allow such behavior to
continue
• State that retaliation against individuals who complain of sexual
harassment or who testify or assist in any proceeding under the
law is unlawful
NYS Model Policy Minimum Requirements
17. • Department of Labor shall consult with Division of
Human Rights to produce a model sexual harassment
training program
• Interactive
• Employers shall utilize model program or establish one
equal to or exceeds medium standards in the model
• ALL employees
NYS Model Training Program
18. • Interactive, annual training for ALL employees
• Explanation of sexual harassment and provide examples
of unlawful sexual harassment
• Federal and state statutory provisions and remedies
• Rights of redress and all available forums for
adjudicating sexual harassment complaints
administratively and judicially
NYS Model Training Program Requirements
19. • Clearly state that sexual harassment is considered a form of
employee misconduct and that sanctions will be enforced against
individuals engaged in sexual harassment and against supervisory
and managerial personnel who knowingly allow such behavior to
continue
• Retaliation against individuals who complain of sexual
harassment or who testify or assist in any proceeding under the
law is unlawful
• DOL Commissioner may promulgate regulations
NYS Model Training Program Requirements
20. • Subpart A amends the state finance law to add a new section 139-1:
• Effective Date: January 1, 2019
• Bids made to state or agency where competitive bidding is required by statute,
rule or regulation shall contain anti-sexual harassment statement:
• “By submission of this bid, each bidder and each person signing on behalf of
any bidder certifies, and in the case of a joint bid each party thereto certifies as
to its own organization, under penalty of perjury, that the bidder has and has
implemented a written policy addressing sexual harassment prevention in the
workplace and provides annual sexual harassment prevention training to all of
its employees”
• Pains and penalties of perjury
• Minimum policy requirements of this law (discussed earlier)
NYS Required Bid Provisions
21. • If competitive bidding is NOT required by statute, rule or regulation, may
contain, at the discretion of the department, agency or official, the
certification required above
• Statement may be submitted electronically
• Consequences:
– Bid shall not be considered for award
– Nor shall any award be made to a bidder who has not complied
– If the bidder cannot make the certification, the bidder shall so state
and furnish with the bid a signed statement which sets forth in
details the reasons it could not do so
NYS Required Bid Provisions
22. • Bid to a state or agency by a corporate bidder,
where such bid contains the statement, shall be
deemed to have been authorized by the Board of
Directors of such bidder
• Such authorization shall be deemed to include the
signing and submission of such bid and the inclusion
therein of such statement as the act and deed of
the corporation
– Consider Board reporting, protocols, minutes
NYS Required Bid Provisions
23. Poll Question #1
Do you currently train all of your
New York state employees on
sexual harassment prevention?
25. • Passed New York City Council on April 11, 2018;
expected to be signed shortly by Mayor Bill de Blasio
• Generally similar requirements to NYS, but some
important differences and enhancements
NYC Overview and Deadlines
26. • Int. 614-A: NYC Commission on Human Rights required to make
information about sexual harassment available online for the public
(examples of sexual harassment, description of complaint process, other
available agency resources, etc.) – eff. 90 days from when it becomes law
• Int. 630-A: NYC employers to post an anti-sexual harassment rights and
responsibilities poster and provide an information sheet on sexual
harassment to each employee at time of hire
– Every employer to display in English and Spanish
– Commission on HR to make poster and information sheet available -- size and
style requirements – and employers are to distribute it
– 120 days after it becomes law; Commission shall take all actions necessary for
its implementation, including rules, before then
NYC Posting and Information Sheet
Requirements
27. • Int. 632-A requires, starting April 1, 2019:
– 15 or more employees (N.B. new NYS law applies to all
employers)
– Annual sexual harassment “interactive training”
– Interactive training need not be live or facilitated by an in-
person instructor
– “interactive training” means “participatory teaching whereby
the trainee is engaged in a trainer-trainee interaction, use of
audio-visuals, computer or online training program or other
participatory forms of training as determined by the NYC
Commission on Human Rights”
NYC Sexual Harassment Training Requirements
28. • Within 90 days of hire for new employees who work more
than 90 hours in a calendar year who perform work on a
full-time or part-time basis
• Maintain records of compliance, including signed employee
acknowledgements
– May be electronic
NYC Sexual Harassment Training Requirements
29. • Explanation of sexual harassment as a form of
unlawful discrimination under local law
• Statement that sexual harassment is a form of
unlawful discrimination under state and federal law
• Description of sexual harassment, using examples
NYC Sexual Harassment Training
Requirements
30. • Complaint process
• Contact information
• Information regarding BYSTANDER INTERVENTION
• If an employee got trained at another employer,
he/she need not get additional training until next
time this employer does
• Another state’s training okay, if it meets NYC
minimum standards
NYC Sexual Harassment Training
Requirements
31. • NYC Commission on Human Rights responsible for
creating an online interactive training module to be posted
on its website for access by employers
• NYC Commission module to meet requirements
– Not tailored to policies
– Checks the box
NYC Sexual Harassment Training Requirements
32. • Int. 657-A: expands the NYC Human Rights Law
(NYCHRL) coverage of gender-based harassment cases to
include employers with fewer than four employees (like
State)
– Independent contractors carrying out work in furtherance of
an employer’s business operations who are not themselves
employers shall be counted as employees of the employer
• Int. 663-A: SOL for filing gender-based harassment claims
under NYCHRL with the Commission from one year to
three years after the alleged conduct
NYC Expanded Coverage and Remedies
33. Poll Question #2
What’s your biggest concern
about meeting the forthcoming
training requirements?
35. • Review EEOC 2016 Study on Sexual Harassment and
Recommendations:
https://www.eeoc.gov/eeoc/task_force/harassment/
• Model policies, training requirements
• Stay tuned for model policies, training, notices, fact sheets
• Review arbitration agreements – consider FAA preemption
arguments
• Review confidentiality provisions in agreements
– 21/7 day rule considerations, when gender-based/sexual
harassment claims at issue
Take-Aways
37. Thank You!
Experienced, management-side
employment lawyer focused on advice
as counsel and training at national
workplace law firm, Jackson Lewis
President of EVERFI’s Conduct & Culture
division that powers online compliance
training programs for over 1,500
organizations worldwide. Preston was
formerly Assistant General Counsel for
the University of Miami.
Samia M. Kirmani
Principal and Co-Leader of
Training Practice Group,
Jackson Lewis P.C.
kirmanis@jacksonlewis.com
Preston Clark, J.D.
President at EVERFI
preston@everfi.com
38. April 26, 2018
New Sexual Harassment Mandates
in New York: What employers
should know and do now
Preston Clark, J.D.
President,
EVERFI
Samia Kirmani
Principal,
Jackson Lewis P.C.
