Workplace Harassment Training | Clear Law Institute

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

2. 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 2

3. NY State and NY City Harassment Prevention Laws (Enacted Spring 2018) ◻ New York law ⬜ Draft guidance and model documents issued on August 23, 2018 ⬜ Comment period ends September 12 ◻ New York City, “Stop Sexual Harassment in NYC Act” ◻ Some overlap but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 3

4. Expansion of coverage

5. 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 5

6. 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. 6

7. Nondisclosure Agreements

8. 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 8

9. 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 9

10. Arbitration Agreements

11. 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 11

12. Posting and Fact Sheets

13. 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.” 13

14. Policy and Complaint Form

15. 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 15

16. 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. 16

17. 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. 17

18. 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]. 18

19. 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: ________” 19

20. 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 20

21. Harassment Training Requirements

22. 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 22

23. 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 23

24. 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 24

25. Tracking ◻ NY State ⬜ Employers can track completion based on calendar year, anniversary of each employee start date, or any other date the employer chooses. 25

26. 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. 26

27. 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-ess ential-employees-states-not-just-california-supervisors/ 27

28. 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 28

29. Harassment Training Content Requirements

30. “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 30

31. 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 31

32. 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 32

33. 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 33

34. 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 34

35. 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 35

36. 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 36

37. 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 37

38. 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 38

39. Trainer Script ◻ “Welcome to our annual training on sexual harassment prevention. My name is _____[name]_____ and I am the _____[title]____ at _____[organization]_____.” 39

40. 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.” 40

41. 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) 41

42. Many employers likely will offer their own training ◻ Languages ◻ Tracking ◻ Go beyond “check the box” training 42

43. 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 43

44. Preventing Workplace Harassment, Clear Law Institute ◻ Learn more about course features at: ⬜ https://clearlawinstitute.com/compliance-training/wor kplace-harassment-prevention/ ◻ View 15-minute guided demo at: ⬜ https://clearlawinstitute.com/compliance-training/wor kplace-harassment-prevention/view-course-demo/ ◻ Receive pricing or view entire course, info@clearlawinstitute.com, or call 703-372-0550 44

45. 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/ 45

46. Resources

47. 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_FINALVERSIO N.pdf ◻ NYC Fact Sheet ⬜ https://www1.nyc.gov/assets/cchr/downloads/pdf/ma terials/SexHarass_Factsheet.pdf 47

48. 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 48

49. Questions? Michael Johnson CEO Clear Law Institute mjohnson@ClearLawInstitute.com 703-372-0550 49