New York State Issues Final Guidance Regarding Combating Sexual Harassment in the Workplace

Q3. How soon do new employees need to be trained?
A3. As employers may be liable for the actions of employees immediately upon hire, the State encourages training as soon as possible. Employers should distribute the policy to employees prior to commencing work and should have it posted.

Q1. Will New York State make resources available for training in languages other than English?
A1. Yes. Finalized materials will be translated into Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole as quickly as possible and available on this website. Additional languages may be added in the future.

Q2. Am I required to provide the policy and training in languages other than English?
A2. Yes. Employers should provide employees with training in the language spoken by their employees. Model materials will be translated in accordance with Executive Order 26, Statewide Language Access Policy. When a template training is not available from the State in an employee’s primary language, the employer may provide that employee an English-language version. However, as employers may be held liable for the conduct of all of their employees, employers are strongly encouraged to provide a policy and training in the language spoken by the employee.

Q6. Does the complaint form need to be included, in full, in the policy?
A6. No. Employers should, however, be clear about where the form may be found, for example, on a company’s internal website.

Q6. Can the employer initiate the process by suggesting a term or condition of confidentiality?
A6. As long as the statutory process and timeline summarized above is followed, the law does not prohibit the employer from initiating that process.

Q7. Does the process established under the law mean that the parties will need to enter into two separate documents providing for nondisclosure: 1) an agreement that memorializes the preference of the person who complained, and 2) whatever documents incorporate that preferred term or condition as part of a larger overall resolution between the parties?
A7. Yes, as summarized above, starting July 11, 2018, employers will lose the ability to include or agree to include such nondisclosure language in documents resolving sexual harassment matters unless the complainant’s preference for that language has been memorialized in an agreement signed by all parties after following the three-step procedure ….
Q9. Are the new law’s provisions for memorializing a plaintiff’s preference for confidentiality intended to track federal provisions for waving age discrimination rights?
A9. While both the new law and federal age discrimination laws reference 21-day consideration periods and 7-day revocation periods, the context, language and purposes of the state and federal provisions are not the same. Specifically, while the practice of some under the federal law is to fold waivers into standard representations and warranties provisions of settlement agreements that can be presented and executed on the spot, in a single agreement, without waiting for the 21-day consideration period to expire, the new state law requires a separate agreement to be executed after the expiration of the 21-day consideration period before the employer is authorized to include confidentiality language in a proposed resolution.

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