New York Sexual Harassment Law Deadline Has Employers in a Hurry

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By Robert Iafolla

Some employers in New York may have to sprint to meet the Oct. 9 deadline to adopt sexual harassment prevention policies and provide them to workers.

The state moved forward quickly, passing legislation in April, opening up public comment in August on draft documents, and issuing its finalized guidance, model policy, and model complaint form Oct. 1. That timing could make it difficult or even impossible for some companies to comply with the new requirements by the deadline, according to employment lawyers who advise management.

“I believe many employers will not be able to do that because the policy came out on the first,” Susan Gross Sholinsky , an attorney with Epstein Becker Green, told Bloomberg Law.

New York was one of a dozen states to enact #MeToo-related laws in the year since sexual misconduct allegations against then Hollywood mogul Harvey Weinstein were made public.

The Empire State also extended legal protections to independent contractors, banned forced arbitration of sexual harassment claims, and prohibited mandatory nondisclosure agreements in settlements of those claims. New York City has enacted its own series of measures aimed at combating sexual harassment.

As part of New York’s new requirements for sexual harassment prevention, employers also have to train their workers on their policies. But companies got a reprieve on the training deadline when New York extended it from Jan. 1, 2019 to Oct. 9, 2019 on Oct. 1, the day the state finalized its guidance and resources.

Model Policy Exceeds Requirements

Employers can either adopt the state’s model prevention policy or design their own. Both choices have advantages and drawbacks.

At eight pages, the model policy is longer than most workplace policies, plus it goes further than what the law requires in some respects, employment attorneys told Bloomberg Law. For example, it includes the phone numbers for the Equal Employment Opportunity Commission and state enforcement agencies, which isn’t a requirement.

Larger companies with just a handful of workers in New York or smaller companies that don’t have human resources departments and want to avoid legal fees may decide to use the state’s model policy, employment lawyers said.

Using the model offers another advantage. “If there’s any question whether an employer complied, they can say, ‘Yes, we have these policies, and in fact they’re your policies,’” Katherine Marques, an attorney with Holland & Knight, told Bloomberg Law.

DIY Policy Requirements

Employer-designed policies must include eight elements mandated by the state, including:

  • a ban on sexual harassment consistent with state-issued guidance;
  • examples of prohibited conduct;
  • information about the federal and state laws on sexual harassment, remedies available to victims, and a statement that there may be applicable local laws;
  • a complaint form; and
  • a procedure for the timely and confidential investigation of complaints.

Employers that design their own policies can incorporate them into their existing employee handbooks or tailor them to individual workplaces, Anne Dana, an attorney with Seyfarth Shaw, told Bloomberg Law.

“Many employers already have broader anti-discrimination and anti-harassment policies, so it wouldn’t make sense for them to have a separate policy just for sexual harassment,” Brie Kluytenaar, a lawyer with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, told Bloomberg Law.

Companies operating in multiple jurisdictions, however, might want to include their customized, New York-specific policies as an addendum to their other policies, said Daniel Turinsky , an attorney with DLA Piper.

“Even if they’re just in the Tri-state area,” Turnisky told Bloomberg Law, “they would have workers in New Jersey and Connecticut who aren’t covered by the New York requirements.”

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