The State of New York recently issued draft guidance for employers regarding the anti-sexual harassment legislation passed earlier this year. As we previously reported, effective October 9, 2018, all New York employers must either adopt or create a policy that equals or exceeds the State’s model policy and training program. On August 23, 2018, the State released its model policy and a set of minimum standards that an employer must meet or exceed if it chooses not to adopt the model policy. A few of the key standards require that an employer’s policy include:

  • Examples of prohibited conduct that would constitute unlawful sexual harassment;
  • A procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  • A complaint form; and
  • Language that informs employees of their rights and all available forums for adjudicating sexual harassment complaints administratively and judicially.

The State also released its model training script and a set of minimum standards that an employer must meet or exceed if it chooses not to directly follow the model. Notable guidelines require that the training must:

  • Be interactive;
  • Include examples of conduct that would constitute unlawful sexual harassment; and
  • Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment.

Additionally, the Frequently Asked Questions section of the State’s guidelines clarifies that to meet the “interactive” element required by the law, a training may: (1) be web-based with questions asked of employees; (2) accommodate questions asked by employees; (3) include a live trainer made available during the training to answer questions; and/or (4) require feedback from employees about the training and materials presented.

The Labor and Employment Team at Hogan Lovells has extensive experience providing interactive anti-harassment training, and developing anti-harassment policies and complaint procedures. For assistance with complying with these new guidelines or for any other employment matter impacting your business, please contact the authors of this article or the attorney you regularly work with at Hogan Lovells.

As we previously reported, New York City Mayor Bill de Blasio signed the “Stop Sexual Harassment in NYC Act” (the “Act”) into law earlier this year.  The New York City Commission on Human Rights (the “NYCCHR”) has now released additional guidance, including the mandatory fact sheet and notice referenced in the Act.

Effective September 6, 2018, all New York City employers must display the anti-sexual harassment notice in a conspicuous location. The notice provides examples of sexual harassment and how to report incidents within an employer’s organization or to the NYCCHR. Additionally, New York City employers must provide the fact sheet to all new hires.  Employers may comply with this requirement by placing the fact sheet in an employee handbook, as long as the handbook is distributed to new hires.

The NYCCHR posted the fact sheet and notice on its new website, which includes additional information on the Act.  As a reminder, beginning on April 1, 2019, New York City employers with at least 15 employees will be required to conduct annual anti-sexual harassment trainings.  These trainings must be “interactive” and explain what sexual harassment is, along with the process of reporting complaints internally and to the respective federal, state, and city administrative agencies.

The Labor and Employment Team at Hogan Lovells has extensive experience providing interactive anti-harassment training, developing anti-harassment policies and complaint procedures, and guiding companies on the best practices for complying with federal and state labor and employment laws. We will continue to keep you updated on the latest developments concerning recent legislation introduced to address sexual harassment in the workplace.

For more information or for any other employment matter impacting your business, please contact the authors of this article or the attorney you regularly work with at Hogan Lovells.

Maryland recently enacted the Disclosing Sexual Harassment in the Workplace Act of 2018 (the “Act”) with an effective date of October 1, 2018. The Act places two types of obligations on Maryland employers. First, Maryland employers with at least 50 employees will be required to submit survey responses to the Maryland Commission on Civil Rights (“MCCR”) with the following data by July 1, 2020 and again by July 1, 2022: (1) the number of settlements made by or on behalf of the employer after an allegation of sexual harassment by an employee; (2) the number of times the employer has paid a settlement to resolve a sexual harassment allegation against the same employee over the past 10 years of employment (and whether the employer took personnel action against said employee); and (3) the number of settlements made after an allegation of sexual harassment that included a provision requiring both parties to keep the terms of the settlement confidential.

The Act directs the MCCR to publish aggregate employer survey data on its website and allow public inspection of certain data upon request. The MCCR will report employer responses to the Governor and select committees, but the Act is silent on how they will in turn use the information. This section of the Act requiring employers to report data will automatically expire on June 30, 2023.

Second, all Maryland employers, regardless of size, are prohibited from including in an employment agreement, contract, or policy, any provision that waives an employee’s substantive or procedural rights or remedies to a claim that accrues in the future for sexual harassment or retaliation for reporting sexual harassment. An employer may not take adverse action against employees for refusing to agree to a prohibited waiver, and employers will be liable to employees for reasonable attorney’s fees and costs if they enforce or attempt to enforce a prohibited waiver. The Act provides that this first obligation applies “except as prohibited by federal law,” and the effect, if any, of the new law on arbitration agreements will need to be determined.

To prepare for October 1, employers should review employment agreements and relevant policies to ensure they do not contain a waiver of substantive or procedural rights or remedies regarding future-accruing claims of sexual harassment or retaliation for reporting sexual harassment.  Additionally, Maryland employers covered under the Act’s reporting obligations will need to be prepared by 2020 to complete the mandatory survey.

As we previously reported, Congress and several states have responded to the #MeToo movement by introducing legislation that addresses sexual harassment in the workplace.

For more information or for any other employment matter impacting your business, please contact the authors of this article or the attorney you regularly work with at Hogan Lovells.

Over the past several weeks, New York has gotten serious in its attempt to end sexual harassment. Earlier this month, Mayor Bill de Blasio signed the “Stop Sexual Harassment in NYC Act” (“New York City Act” or “Act”) into law, bringing about sweeping changes that will affect all New York City employers.

  • Specifically and effective immediately, the New York City Human Rights Law (“NYCHRL”) will consider sexual harassment to be a distinct form of discrimination, and will cover all employers, regardless of the number of employees, with respect to claims of sexual harassment. Further, the Act increases the statute of limitations for gender-based harassment to three years. Previously, the NYCHRL only applied to employers with four or more employees and had a statute of limitations for gender-based harassment of only one year.
  • Effective September 6, 2018, all New York City employers will be required to display a new anti-sexual harassment poster in a conspicuous location, which will be created by the NYC Commission on Human Rights. The poster will define sexual harassment and how to report it. It must be displayed in both English and Spanish.
  • On April 1, 2019, New York City employers with 15 or more employees will be required to conduct annual sexual harassment trainings. These trainings must be “interactive” and explain what sexual harassment is, along with the process of reporting complaints internally and to the respective federal, state and city administrative agencies. Employers must keep records verifying that employees have completed the training.

The Act was enacted on the heels of New York State-wide legislation signed into law by Governor Andrew Cuomo in April. Some of the highlights of the new State-wide laws include:

  • Effective immediately, the New York State Executive law is amended to impose liability upon all employers for gender-based harassment experienced by non-employees, such as contractors, vendors, or consultants.
  • Effective July 11, 2018, New York employers are prohibited from including a non-disclosure agreement in any settlement of a sexual harassment claim unless the complainant specifically requests confidentiality.
  • Effective July 11, 2018, New York employers are prohibited from including mandatory arbitration provisions for allegations or claims of sexual harassment “except where inconsistent with federal law.”
  • Effective October 9, 2018, all New York employers must either adopt or create a policy that equals or exceeds the model policy and training program which will be developed by the New York Department of Labor in collaboration with the Division of Human Rights.

In light of these new laws, New York employers should: (a) review and revise as necessary their sexual harassment training policies and practices to ensure compliance with City and State laws; (b) as soon as the anti-sexual harassment posters become available, New York City employers should be prepared to post the posters in a conspicuous setting in the workplace; (c) review their standard settlement agreements to make sure that they are in compliance with New York’s new laws on the prohibition of non-disclosure agreements in harassment-based settlements; and (d) assess any mandatory arbitration provisions in their contracts or policies to comply with these new laws. This aspect of the law will likely be challenged in court and could take several years before a final conclusion is reached, but companies would be wise to consider the potential impact that the law has on pre-existing and future agreements.

The Labor and Employment Team at Hogan Lovells has extensive experience providing interactive anti-harassment training, developing anti-harassment policies and complaint procedures, and guiding companies on the best practices for complying with Federal and State labor and employment laws.

 

 

Employers and employees entering into separation or settlement agreements have traditionally agreed to nondisclosure clauses that prohibit disclosure of the agreement or the circumstances leading to its execution. Although these clauses have not previously been subject to much controversy and considered to provide valuable closure for employer and employee, the #MeToo movement has generated much criticism of such clauses when related to allegations of sexual harassment, arguing they have the detrimental effects of silencing victims and enabling repeat offenders.  This criticism has led to new trends in the law which discourage such nondisclosure clauses and agreements.

The most significant change so far is in federal tax law, which has created a disincentive to nondisclosure provisions in settlements of sexual harassment or abuse claims. Specifically, Congress’s recently enacted Tax Cuts and Jobs Act prohibits employers from deducting as a business expense (under Internal Revenue Code Section 162)  “(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.”

At the state level so far, California, New Jersey, New York, Pennsylvania and Washington have introduced legislation aimed at curtailing the use of nondisclosure provisions that restrict discussions or disclosure of workplace sex harassment. Each state proposal has its own specifics, but in general they render invalid the use or enforcement of non-disclosure provisions related to sexual harassment, either as part of any nondisclosure agreement, or in the context of settlement agreements, or both.  As of the date of this article, legislation is still pending in California, New York, and Pennsylvania, and New Jersey’s bill did not pass in the state’s last legislative session.  Washington’s bill was enacted into law on March 21, 2018 with an effective date of June 7, 2018 and covers nondisclosure agreements entered into as a condition of employment, but permits confidentiality provisions in settlement agreements.  The text of the Washington law can be found here.

Employers should stay up to date concerning applicable laws in connection with nondisclosure agreements. And when nondisclosure agreements exist, employers should remember that they may not interfere with an employee’s right to file a charge with or communicate with U.S. Equal Employment Opportunity Commission (“EEOC”).  Although a settlement agreement can bar an individual from seeking monetary or other individual relief at the EEOC, courts and the EEOC have invalidated agreement terms that interfere with an individual’s nonwaivable right as a matter of public policy to file a charge or otherwise communicate with the EEOC.

For more information or for any other employment matter impacting your business, please contact the authors of this article or the attorney you regularly work with at Hogan Lovells.