Thursday, October 4, 2018
As we ahead reported here and here, New York Governor Andrew Cuomo afresh allowable an advancing anti-ual aggravation law with acrimonious requirements for employers’ anti-harassment behavior and training. A key basic of the new law goes into aftereffect on October 9, 2018, and requires every employer in New York Accompaniment to authorize a animal aggravation blockage policy. In addition, New York Accompaniment administration charge accommodate advisers with animal aggravation blockage training that, beneath the final guidance, charge be completed by October 9, 2019 (i.e., one year afterwards the law’s able date).
On October 1, 2018, alone eight canicule afore the law’s able date, the New York Accompaniment Department of Labor (NYSDOL) and the New York Accompaniment Division of Human Rights (DHR) appear their final advice and archetypal abstracts beneath the new law. Since the advertisement of the antecedent abstract on August 23, 2018, the NYSDOL fabricated a cardinal of cogent changes to the final advice and archetypal materials, which accommodate a archetypal anti-harassment policy, archetypal complaint form, and archetypal training program. Alternatively, administration may accept a agnate action and training affairs that meets or exceeds the minimum standards of the archetypal action and training.
Below are some highlights from the final models and guidance under this New York Accompaniment law.
Under the adapted New York Accompaniment law, able October 9, 2018, all administration in New York Accompaniment charge apparatus a animal aggravation blockage action that complies with the law. Specifically, the NYDOL’s archetypal policy:
The final FAQs also analyze assorted aspects of the archetypal policy. For example, the FAQs explain that administration charge not accept the analytic action categorical in the state’s archetypal policy. If an employer has already accustomed an analytic action agnate (but not identical) to the state’s archetypal policy, the employer may outline such procedures in lieu of the action set alternating in the state’s archetypal policy.
Critically, the archetypal action continues to accommodate a abundant breadth anecdotic employees’ acknowledged remedies and appropriate to book accuse with the DHR, the EEOC, and the New York City Commission on Human Rights (NYCCHR), or seek recourse from bounded law administration or a clandestine attorney. Among added information, the state’s archetypal action includes acquaintance advice for the DHR, EEOC, and NYCCHR.
Under the new law, administration charge accommodate advisers with the action in autograph or electronically. If an employer makes a archetype of the action accessible on a assignment computer, workers charge be able to book a archetype for their own records. Administration charge accommodate the action to advisers aloft hiring.
The FAQs and the archetypal action analyze that while announcement a archetype of the action is not required, announcement it in an breadth that is awful arresting (to the admeasurement practicable) communicates an employer’s accomplishment to accede with the law.
Further, alike admitting the New York Accompaniment Human Rights Law now covers contractors, subcontractors, vendors, and consultants, the FAQs analyze that administration are not appropriate to accommodate a action to these individuals. However, administration are “encouraged” to accommodate the action to anyone who provides casework in the workplace.
While administration are not appropriate to access active accepting forms that advisers accept accustomed and apprehend the policy, the FAQs animate administration to accumulate active acknowledgements.
The minimum standards crave that a animal aggravation action accommodate a written complaint form. While the FAQs analyze that the complaint anatomy charge not be included in abounding in the policy, administration “should . . . be bright about area the anatomy may be found, for example, on a company’s centralized website.”
Notably, the accomplished archetypal complaint anatomy does not ask whether the alone has filed a affirmation with a government bureau or a accusation in affiliation with the complaint, or whether the complainant has assassin an attorney. However, it still provides an befalling to allotment this information. The accomplished archetypal complaint anatomy additionally removes statements that a the agent that he or she may book claims with added entities or in court, which was abundantly duplicative of the advice independent aural the state’s archetypal policy.
One above change in the accomplished advice is that New York Accompaniment alone the affirmation that administration complete all animal aggravation blockage training by January 1, 2019. Beneath the new guidance, administration charge accomplish the antecedent anniversary training affirmation by October 9, 2019, and annually thereafter. The accompaniment additionally alone the affirmation that administration alternation new hires aural 30 canicule of hire. Rather, the final advice requires administration to accommodate training to new advisers “as bound as possible.”
According to the FAQs, all advisers in New York—including part-time, temporary, and melancholia employees—must accept training. However, administration are not appropriate to alternation third-party vendors or added nonemployees who collaborate with New York Accompaniment advisers (although administration are encouraged to accommodate a archetype of the anti-harassment action and training to such individuals).
The FAQs additionally accompaniment that the training affirmation applies alone to those advisers who assignment or who will assignment in New York. However, if an alone works any allocation of their time in New York State, alike if the agent is based in addition state, he or she charge accept the training. Notably, the FAQs do not call the minimum contacts with New York Accompaniment afore training is required, acceptation that a distinct day spent in the accompaniment may activate the training requirement.
The final advice on the anniversary training affirmation additionally provides the afterward added clarification:
As we previously reported, able July 11, 2018, administration in New York Accompaniment are banned from acute nondisclosure clauses in any adjustment or absolution of claims if “the absolute foundation for which involves animal harassment.” An barring exists if the action of acquaintance is the complainant or plaintiff’s preference. If an employer includes such language, the complainant or plaintiff charge be accustomed 21 canicule to accede the appellation or condition, and the employer charge approach its alternative in an acceding active by all parties. Then the complainant or plaintiff charge accept at atomic seven canicule afterward the beheading of such acceding to abjure the acceding if he or she chooses to do so. The nondisclosure article cannot go into aftereffect or become acknowledged until afterwards the aishment aeon has expired.
The state’s FAQs analyze that, for such a nondisclosure acceding to be effective, the parties charge access into two abstracted agreements: (1) a aboriginal acceding that “memorializes the alternative of the being who complained” in acquiescence with the 21-day cat-and-mouse and 7-day aishment periods; and (2) a additional acceding that contains the nondisclosure accouterment and any added acceding and altitude of the parties’ agreement.
Notably, according to the state’s FAQs, the 21-day application aeon may not be waived or contrarily shortened. Rather, the 21-day aeon charge expire afore the aboriginal acceding is active (i.e., back the complainant’s alternative is memorialized in an acceding active by the parties), and the minimum 7-day aishment aeon does not alpha to run until afterwards that acceding is executed. This convenance differs from the agnate cat-and-mouse and aishment periods appropriate for releases of age bigotry claims beneath the federal Age Bigotry in Employment Act (ADEA). The FAQs accede that the ADEA allows administration to “fold waivers into accepted representations and warranties accoutrement of adjustment agreements that can be presented and accomplished on the spot, in a distinct agreement, afterwards cat-and-mouse for the 21-day application aeon to expire.” In contrast, for a accurate nondisclosure acceding of claims involving animal harassment, “the new accompaniment law requires a abstracted acceding to be accomplished afterwards the cessation of the 21-day application aeon afore the employer is accustomed to accommodate acquaintance accent in a proposed resolution.”
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