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1. New York State and NYC’s New
Sexual Harassment Laws
August 28, 2018
Michael W. Johnson, J.D.
Clear Law Institute
mjohnson@ClearLawInstitute.com
(703) 372-0550
www.ClearLawInstitute.com

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About Michael Johnson
◻ CEO of Clear Law Institute, which
provides online and in-person
harassment training and consulting
services for hundreds of employers
◻ Former attorney in the US
Department of Justice
◻ Provides seminars on how to
investigate harassment complaints
for organizations such as the EEOC,
Google, and the World Bank
◻ Graduate of Duke University and
Harvard Law School

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NY State and NY City Harassment Prevention
Laws (Enacted Spring 2018)
◻ New York law
⬜ Draft guidance and model documents issued on August
23, 2018
⬜ Comment period ends September 12
◻ New York City, “Stop Sexual Harassment in NYC
Act”
◻ Some overlap but several differences
◻ Challenges for multi-state employers

4. Expansion of coverage

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Coverage Expanded
◻ NY State: An employer may be liable for sexual
harassment of non-employees, including
contractors, subcontractors, vendors, and
consultants.
⬜ Liable where the employer, its agents or supervisors
■ Knows or should know that harassment is occurring in its
workplace, and
■ Fails to take immediate and appropriate corrective action
◻ New York City Human Rights Law (NYCHRL) now
covers employers with fewer than four employees
for sexual harassment claims

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Are contractors who bid on NY
State and City contracts covered?
◻ State
⬜ Beginning January 1, 2019, all contractors who bid on NY
State contracts requiring competitive bids must certify
under penalty of perjury that they have implemented
compliant harassment policies and provided annual sexual
harassment training to all employees.
◻ City
⬜ Law doesn’t explicitly require city contractors to provide
sexual harassment training
⬜ They will be required to describe their practices, policies,
and procedures “relating to preventing and addressing
sexual harassment” as part of existing reporting
requirements.

7. Nondisclosure Agreements

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NY State Restrictions on
Nondisclosure Agreements (“NDAs”)
◻ Effective July 11, 2018
◻ A nondisclosure agreement is defined to include
any resolution of any claim involving sexual
harassment that would prevent the person who
complained from disclosing the underlying facts
and circumstances of the harassment.
◻ Prohibits inclusion of nondisclosure agreements
in sexual harassment claim resolutions, unless it’s
the complainant’s preference

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Process for obtaining an NDA
◻ Employer can initiate the process by suggesting a
term or condition of confidentiality
◻ Consideration period
⬜ Complainant will have 21 days to consider
⬜ Must memorialize complainant’s preference for a NDA
in writing
⬜ Complainant then has seven days to revoke

10. Arbitration Agreements

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NY State Arbitration Agreements
◻ Effective July 11, 2018
◻ Mandatory arbitration agreements for sexual
harassment claims no longer valid
◻ Exception for collective bargaining agreements
◻ Could be preempted by the Federal Arbitration
Act
◻ Review your policies and employment contracts

12. Posting and Fact Sheets

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Posting
◻ NYC Commission on Human Rights has created a
poster and information “fact sheet.” Before
September 9, 2018, all employers in NYC must:
⬜ Post an anti-sexual harassment rights and responsibilities
poster in English and Spanish
⬜ Provide an information on sexual harassment to each
employee at the time of hire (can be included in employee
handbook)
◻ NY State
⬜ “[Sexual harassment] policy must be posted prominently in
all work locations and be provided to employees upon
hiring.”

14. Policy and Complaint Form

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Model Sexual Harassment
Prevention Policy
◻ NY State has developed a “model” sexual
harassment prevention policy that includes
several required elements
◻ Employers may either adopt this policy as their
own or ensure that their policy includes all the
mandated elements
◻ Applies to all employers, even those with just one
employee

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NY State Policy Requirements
◻ Employers must provide employees with their
policy in writing by October 9, 2018.
◻ “Employers should provide employees with the
policy in the language that is spoken by their
employees.”
◻ No signed acknowledgement is required, but
employers are encouraged to obtain a signed
acknowledgement.

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NY State Policy Requirements
◻ Employers can provide their policy to employees
electronically
◻ But workers must be able to access the
employer’s policy on a computer provided by the
employer during work time and be able to print a
copy for their records.

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Model Complaint Form
◻ Employers must provide a sexual harassment
complaint form as part of the policy
◻ “Reports of sexual harassment may be made
verbally or in writing.”
◻ “Employees are encouraged to use [the complaint
form].

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Model Complaint Form
◻ Direction to employers: “If complaint is oral,
encourage the individual to complete the
“Complaint Form” in writing. If he or she refuses,
prepare a Complaint Form based on the oral
reporting.”
◻ “Your complaint of Sexual Harassment is made
against: ________”

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Items to note about model
harassment policy
◻ “An investigation of any complaint, information
or knowledge of suspected sexual harassment will
be prompt and thorough, and should be
completed within 30 days.”
◻ Must inform of the ability to file an external
complaint with government agencies
◻ Must inform of remedies available to victims of
sexual harassment

21. Harassment Training Requirements

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Which employers are required to provide
training?
◻ State
⬜ All employers, regardless of size, who employ anyone
in the state of New York
⬜ Any company that bids on state contracts (must train
all employees, even those outside the state)
◻ City
⬜ Employers with 15 or more employees

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Deadline to provide the training
◻ NY State
⬜ Deadline of January 1, 2019 to train existing employees
⬜ New employees within 30 days of hire
◻ NYC
⬜ Employers have one year from April 1, 2019 to
implement the training for all employees and must
ensure all employees are trained annually thereafter.
⬜ New employees within 90 days of hire
◻ Annual training required

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NY State: What does “all
employees” mean?
◻ Employers must provide the training to all part-time
employees
⬜ There does not appear to be a minimum hours
requirement
◻ What about temporary / transient employees? If
someone just works for one day for the employer, or
if someone works for just one day in NY?
⬜ “Employers are required to ensure that all employees
receive training.”
◻ NYC: Employees who work 90 or more hours per
calendar year, on a full or part-time basis in NYC

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Tracking
◻ NY State
⬜ Employers can track completion based on calendar
year, anniversary of each employee start date, or any
other date the employer chooses.

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New Employees
◻ NYC
⬜ An employee who has received sexual harassment
training at one employer within the required training
cycle does not need to receive additional sexual
harassment training at another employer until the next
cycle.
⬜ An employer who is subject to training requirements in
multiple jurisdictions may provide proof of compliance
with the New York City law, as long as the employer’s
sexual harassment training is provided annually and
contains the mandated training areas discussed under
the law.

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Other states
◻ NY State and NYC: Annually
◻ California supervisors: Every two years
◻ Connecticut supervisors and all employees in
Maine (once)
◻ EEOC guidance: “Periodic”
◻ Court decisions from around the country
⬜ White paper at:
■ https://clearlawinstitute.com/blog/harassment-training-
essential-employees-states-not-just-california-supervisors/

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Recordkeeping
◻ NY State: None specifically required
◻ NYC:
⬜ Employers shall keep a record of all trainings for at
least 3 years
⬜ Must keep a signed employee acknowledgement,
which may be electronic
⬜ Records must be made available for commission
inspection upon request
◻ Comparison to other states

29. Harassment Training Content
Requirements

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“Participatory” and “Interactive”
◻ NY City: Training can be online; must be
“participatory.”
◻ State: “Interactive” = some form of employee
participation. The training should include as many of
the following elements as possible:
⬜ Include a live trainer made available during the session to
answer questions
⬜ Be web-based with questions asked of employees as part
of the program
⬜ Accommodate questions asked by employees, and/or
⬜ Require feedback from employees about the training and
the materials presented

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Sexual Harassment Definition and
Examples
◻ NY State
⬜ An explanation of sexual harassment consistent with
guidance issued by the NY DOL
⬜ Must include examples of conduct that would
constitute unlawful sexual harassment
◻ NYC
⬜ A description of what sexual harassment is, using
examples

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Applicable Laws
◻ NY State
⬜ Information concerning the federal and state statutory
provisions concerning sexual harassment
⬜ Remedies available to victims of sexual harassment
◻ NYC
⬜ An explanation of sexual harassment as a form of
unlawful discrimination under federal, state, and local
law

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Reporting, External Forums of Adjudication,
and Rights of Redress
◻ NY State
⬜ Information concerning employees’ rights of redress
and all available forums for adjudicating complaints
◻ NYC
⬜ Internal complaint process
⬜ Complaint process, including contact information, for:
■ NYC Commission on Human Rights
■ New York State Division of Human Rights
■ EEOC

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Retaliation
◻ NY State
⬜ Not specifically required by the state law
⬜ But the law also notes that anti-retaliation provisions
must be included in the employer’s policy
⬜ Model training includes information on retaliation
◻ NYC
⬜ The prohibition of retaliation
⬜ Examples of protected activity under the law

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Supervisors’ Duties
◻ NY State
⬜ Addresses conduct by supervisors and any additional
responsibilities for such supervisors
◻ NY City
⬜ The specific responsibilities of supervisory and
managerial employees in the prevention of sexual
harassment and retaliation
⬜ Measures that supervisory and managerial employees
may take to appropriately address sexual harassment
complaints

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Bystander Intervention
◻ NY State
⬜ No requirement to address the topic
◻ NY City
⬜ Information concerning bystander intervention,
including but not limited to, any resources that explain
how to engage in bystander intervention

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Model training programs
◻ Both state and city to develop model programs
⬜ NYC law says designed to be a “minimum threshold.”
⬜ State has developed a draft of the model program

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State Model Training
◻ Script for in-person group training, available in
PDF and editable Word formats
◻ PowerPoint to accompany the script, available
online and for download
⬜ Video presentation—says will be viewable online and
for download
◻ FAQs, available online and for download, to
accompany the training

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Trainer Script
◻ “Welcome to our annual training on sexual
harassment prevention. My name is
_____[name]_____ and I am the _____[title]____
at _____[organization]_____.”

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Employer questions
◻ Do you have someone qualified to deliver the
training?
⬜ What if the trainer gives inaccurate advice?
◻ Given 30-day requirement for new hires, will you
have to provide the training every 30 days?
⬜ What happens if a new employee is out that day?
◻ Is reading from a script effective training?
◻ Languages
⬜ “Employers should provide employees with training in
the language that is spoken by their employees.”

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Many employers likely will offer
their own training
◻ Must provide instruction on their internal
complaint process
◻ Should train on all forms of harassment, not just
sexual
◻ Must comply with both NY and NYC training
⬜ Bystander intervention in NYC, even though not
required by NY State
◻ Comply with all jurisdictions’ laws (not just NY
and NYC)

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Many employers likely will offer their
own training
◻ Languages
◻ Tracking
◻ Go beyond “check the box” training

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Preventing Workplace
Harassment, Clear Law Institute
◻ Used by hundreds of organizations
◻ 50-state compliant (English and Spanish)
◻ NY/NYC covered in the same course version
◻ In-house legal expertise
⬜ We meet the expertise requirement of California’s
harassment training law
⬜ Training updated at no cost as law changes
◻ Utilizes learning games and nuanced scenarios
◻ Provide Tier 1 technical support directly to users

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Preventing Workplace
Harassment, Clear Law Institute
◻ Learn more about course features at:
⬜ https://clearlawinstitute.com/compliance-
training/workplace-harassment-prevention/
◻ View 15-minute guided demo at:
⬜ https://clearlawinstitute.com/compliance-
training/workplace-harassment-prevention/view-
course-demo/
◻ Receive pricing or view entire course,
info@clearlawinstitute.com, or call 703-372-0550

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Harassment Prevention Services
◻ Online and in-person harassment prevention
training
◻ Risk assessments
◻ Culture surveys
◻ Investigations Training
⬜ Client-specific training:
■ http://clearlawinstitute.com/it
⬜ Online video and certificate program at :
■ https://clearlawinstitute.com/investigations-training/

46. Resources

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NYC Resources
◻ NYC Poster (English)
⬜ https://www1.nyc.gov/assets/cchr/downloads/pdf/ma
terials/SexHarass_Notice-8.5x11.pdf
◻ NYC Poster (Spanish)
⬜ https://www1.nyc.gov/assets/cchr/downloads/pdf/ma
terials/SexHarass_Notice8.5x14_spa-
US_FINALVERSION.pdf
◻ NYC Fact Sheet
⬜ https://www1.nyc.gov/assets/cchr/downloads/pdf/ma
terials/SexHarass_Factsheet.pdf

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NY State Draft Documents
◻ Model Policy
⬜ https://www.ny.gov/sites/ny.gov/files/atoms/files/Sta
tewideSexualHarassment_PreventionPolicy.pdf
◻ Model Complaint Form
⬜ https://www.ny.gov/sites/ny.gov/files/atoms/files/Co
mplaintformSexualHarassment.pdf
◻ Training Minimum Standards
⬜ https://www.ny.gov/sites/ny.gov/files/atoms/files/Sta
ndardsSexualHarassmentPreventionTraining.pdf

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Questions?
Michael Johnson
CEO
Clear Law Institute
mjohnson@ClearLawInstitute.com
703-372-0550