New York State’s frequently asked questions (FAQ) guidance on harassment prevention has been updated to reflect several recent amendments to workplace harassment law. While the guidance is tailored to address sexual harassment prevention, newly updated portions of the guidance are applicable to discrimination and harassment-prevention based on other protected characteristics, too. The updated FAQ page adds information on sexual harassment prevention notices, trainings, and policies, as well as information on mandatory arbitration clauses and nondisclosure agreements in the context of discrimination claims.

Updated Guidance on Required Sexual Harassment Notice, Policy and Training

New Sexual Harassment Prevention Notice

Most New York employers are by now familiar with the state’s required sexual harassment prevention policy and annual harassment prevention training. Reflecting a recent amendment, the FAQ now further clarifies that employers are also required to provide new employees with a sexual harassment prevention “notice” at their time of hiring, and, to provide this notice at each annual sexual harassment prevention training. The notice, which can be delivered via email, must contain or digitally link to the employer’s sexual harassment prevention policy, and must also contain or digitally link to the materials presented at the employer’s sexual harassment prevention training. For new employees, the FAQ advises that the notice should be provided by the start of the employee’s first day of work.

A model notice is available on the State’s website, now updated with fill-in-the-blank sections referencing the employer’s training materials.

Updated Sexual Harassment Prevention Model Policy

The state’s Model Sexual Harassment Prevention Policy has been updated as well. The Policy’s definition of “sexual harassment” reflects the new standard governing harassment under the N.Y. Human Rights Law, stating that sexual harassment is unlawful when it subjects an individual to “inferior terms, conditions, or privileges of employment,” but, that the harassment “need not be severe or pervasive to be unlawful.” At the same time, the conduct must be “more than petty slights or trivial inconveniences” in order to be unlawful.

Language Requirements

The FAQ also reminds employers that the notice, policy, and training materials must be provided to employees in English and/or an employee’s primary language. The State’s website provides model materials translated into several languages. If an employee’s primary language is not one that New York State provides translated materials for, the FAQ still strongly encourage employers to translate the materials into the employee’s language, as employers may be held liable for the conduct of their employees.

Guidance on Prohibition of Mandatory Arbitration of Discrimination Claims

New York’s overhaul of its sexual harassment prevention requirements in 2018 included a prohibition of mandatory arbitration of sexual harassment claims. In 2019, an amendment expanded that prohibition to all discrimination claims.  The FAQ reiterates that new expansion, advising that contract clauses requiring mandatory arbitration to resolve discrimination claims are prohibited. The FAQ further explains that new contracts containing any prohibited arbitration clauses are generally banned, except under certain circumstances such as where the clause is inconsistent with federal law or in collective bargaining agreements where there is a conflict between the agreement and the law.

The prohibition on arbitration clauses has already been the subject of litigation, and at least one Federal court has ruled that the state’s prohibition on such arbitration clauses violates the Federal Arbitration Act.

Guidance on Nondisclosure Agreements

Similar to the 2019 expansion on prohibited arbitration to matters beyond sexual harassment claims, New York also expanded its prohibition on nondisclosure agreements or confidentiality provisions in settlements of all discrimination matters.

The FAQ summarizes the expanded prohibition on nondisclosure agreements. In resolving any discrimination claim by settlement agreement, the agreement may not include a confidentiality or nondisclosure clause that would prevent disclosure of the underlying facts and circumstances to the claim or action unless the complaining employee prefers to keep the facts and circumstances of the claim confidential.

The FAQ advises that if a complaining employee prefers nondisclosure, the settling parties must follow a specific procedure. The employee must be provided with the “term or condition” that calls for confidentiality or nondisclosure. The employee then has 21 days to consider the term. After 21 days, if the employee agrees to the term, the parties must sign a separate agreement memorializing that the employee wishes to keep the underlying facts and circumstances to the claim or action confidential. The complaining employee then has 7 days from this date to revoke his/her acceptance.

Ultimately, the procedure requires two agreements for confidential settlements of discrimination claims preventing disclosure of the underlying facts and circumstances to the claim or action: one agreement memorializing that the employee prefers confidentiality, and another agreement containing the overall terms of the settlement.

The FAQ also notes that confidentiality agreements are void to the effect they bar an employee from participating in an investigation by a government agency (such as the EEOC or N.Y. Division of Human Rights), or, to the effect they bar the employee from disclosing facts necessary to receive unemployment insurance, Medicaid, or other public benefits.

Finally: the FAQ advises that agreements seeking to preemptively bar disclosure will be unenforceable. Effective January 1, 2020, any employment agreement that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable, unless the provision notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement, the EEOC, the N.Y. Division of Human Rights, a local commission on human rights, or an attorney retained by the employee or potential employee.

Steps to Verify Compliance

Employers and human resources professionals should review their anti-harassment and non-discrimination policies to verify compliance with new requirements.  Employers are also advised to review the State’s “Combating Sexual Harassment: Frequently Asked Questions” guidance for additional updates.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.