In August 2020, the Victorian Equal Opportunity & Human Rights Commission released its new and updated guideline for complying with the Equal Opportunity Act 2010 (Vic) (Equal Opportunity Act): Preventing and responding to workplace sexual harassment (Guideline).
Recently, New York State and New York City have continued the trend of enacting employee-friendly legislation and issuing broad enforcement guidance under their respective employment laws and regulations. New York State and New York City employers should be aware of the following recent developments from 2018 and early 2019, and should take action to review and update their practices and policies for compliance.
Federal and New York State laws already require employers to make reasonable efforts to provide a room other than a bathroom where a nursing employee can express breast milk in privacy. New York City recently passed two laws expanding those rights. Effective March 18, 2019, New York City employers will be subject to additional specific requirements regarding the lactation room that must be made available to nursing mothers. New York State law already requires that the lactation room be private, well-lit, and contain, at a minimum, a chair and small table, desk, counter, or other flat surface. The New York City law will require additional amenities in the lactation room, including an electrical outlet and nearby access to running water, and that the employer provide a refrigerator suitable for breast milk storage in reasonable proximity to the employee’s work area. Also effective March 18, 2019, New York City employers will be required to implement a written lactation room policy that meets specified requirements, and provide a copy of the policy to all employees upon hiring. The policy must include a statement that employees have the right to request a lactation room, and identify a process by which employees may make such request (which process must meet certain minimum requirements).
Effective October 15, 2018, New York City amended its Human Rights Law to require covered employers to engage in a “cooperative dialogue” with individuals who may be entitled to a reasonable accommodation related to religious beliefs, disability, pregnancy, childbirth or a related medical condition, or because the employee was a victim of domestic violence, sex offenses, or stalking. The law requires that covered employers follow certain procedures when they receive a request for an accommodation, or when they have notice that an individual may need an accommodation, including the following:
In September 2018, we reported on New York State’s issuance of draft guidance under the recently enacted New York State law aimed at preventing sexual harassment. New York State has now issued final guidance under this law. This includes final guidance regarding:
Note that, under the prior draft guidance, the first annual interactive anti-sexual harassment training was required to be conducted before January 1, 2019. The final guidance delays the requirement to conduct the first annual interactive training until October 9, 2019. The final guidance also seemingly relaxes the timing requirement for training new hires. Whereas the prior draft guidance specified that new hires had to be trained within 30 days of beginning employment, the final guidance encourages training new hires as soon as possible, but does not impose a deadline.
The October 9, 2018 deadline for New York State employers to adopt an anti-sexual harassment policy that complies with the new law is only days away. New York State employers who do not adopt the model policy issued by New York State can adopt individually tailored policies, as long as they meet the minimum requirements of the New York State law. Note that there are certain provisions in the New York State model policy that go beyond the minimum standards required of New York State employers, so for this and other reasons, employers may prefer to customize their own policies.
In April 2018, we reported on New York State’s enactment of a new law aimed at preventing sexual harassment. We summarized this new law in detail in our legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws, and our Global Workplace Insider article, New York State’s new sexual harassment prevention laws will require action by all New York employers. Under this law, New York State employers will need to comply with the following new requirements, among others:
New York State has recently issued additional guidance on this new law, including a draft model anti-sexual harassment policy and complaint form, a draft training module, and draft frequently asked questions. All of this guidance is in draft form, and the public can provide comments on the drafts on or before September 12, 2018. Presumably, New York State will issue final guidance sometime after the end of the comment period and before the October 9, 2018 deadline for adopting a compliant anti-sexual harassment policy. New York State employers who do not adopt the model documents issued by New York State can adopt individually tailored policies and training modules, as long as they meet the minimum requirements of the New York State law. For this purpose, New York State issued documents summarizing the law’s minimum standards for sexual harassment prevention policies and training. Note that there are certain provisions in the New York State draft model policy that seem to go beyond the minimum standards required of New York State employers, so for this and other reasons, employers may prefer to customize their own policies. Additionally, it is unclear how far in advance of the October 9, 2018 deadline New York State will issue its final guidance and final model policy. Accordingly, New York State employers will want to begin working now to get their policies into compliance by the October 9, 2018 deadline.
On May 9, 2018, New York City enacted a number of laws addressing sexual harassment in the workplace. The laws are summarized below. New York City employers who do not yet have anti-harassment and anti-retaliation policies in place should promptly begin the process for adopting them. New York City employers should also begin to make arrangements for providing their employees with anti-harassment training (upon hire and annually thereafter). Such training is now required under both New York State and New York City law. New York State’s law, which was also recently enacted, will become effective first. For a brief discussion of the recent New York State legislation, please see our prior blog post, New York State’s new sexual harassment prevention laws will require action by all New York employers.
Beginning April 1, 2019, New York City employers with 15 or more employees (which includes interns for purposes of this new law) must provide anti-sexual harassment training to all of their New York City employees on an annual basis. The training must also be provided to new hires (who will work more than 80 hours per year) during the first 90 days of their employment. The training must address the following items (at a minimum):
Also, the training must be “interactive.” However, the new law is clear that the training need not be in-person or live in order to be considered interactive. The New York City Commission on Human Rights will be developing an on-line training module that can be used by employers to satisfy this training requirement, as long as employers supplement the module with a description of their internal complaint procedures.
The law requires employers to maintain records of all trainings provided, including signed employee acknowledgements, for at least three years.
New York City employers should be aware that this New York City training requirement is in addition to, and not in lieu of, the recently enacted New York State sexual harassment training requirement. New York City employers should ensure that their training modules satisfy both state and city requirements, to the extent applicable. To read a copy of our recent client alert summarizing the New York State requirement, please see our prior legal update, New York employers should get ready to comply with New York State’s new sexual harassment prevention laws.
Effective September 6, 2018, all New York City employers must provide employees at the time of hire with an information sheet on sexual harassment. This information sheet will be developed by the New York City Commission on Human Rights and may be included in the employer’s employee handbook.
As we are all aware, the news has been populated with stories concerning allegations of sexual harassment and misconduct, particularly in the entertainment and media industries as well as government institutions. These stories have contributed to the “#MeToo” movement, which originated on Twitter and other social media websites in late 2017 and has since become a widespread message on social media encouraging individuals to share their stories and speak out against sexual harassment and abuse. But while its purposes are laudable, the #MeToo movement is a touchy subject for employers, who ever-more-frequently find themselves accused of sexual harassment or other misconduct on social media and must grapple with the implications of publicly aired grievances.