Significant Compliance Challenges in New York State’s Proposed Anti-Sex Harassment Rules: What Can Employers Do Now?

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Interested employers should take the opportunity to submit comments, because certain aspects of the draft guidance will pose notable compliance challenges and are not necessarily grounded in the language of Section 201-G.  For example, the draft documents state, “all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.
  
• 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.”
  
• 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.
  
• 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.