Joshua Zuckerberg, a partner in Pryor Cashman's Labor + Employment Group, recently spoke with Compliance Week about the increasing number of states that have passed, or have proposed, legislation designed to abolish sexual harassment in the workplace, and what these new laws mean for compliance.

(Excerpts from the interview are published below)

Under the new legislation, many states are requiring companies to have in place a sexual harassment prevention policy and training program. New York and California are among the states with the strongest proposed sexual harassment laws. "If you're following New York or California, you're doing as much or more than you need to be doing in almost every state," Zuckerberg told CW.

For example, as of October 9, 2018, any company with operations in New York — regardless of size — must adopt a sexual harassment prevention policy and implement a training program, following required minimum standards.  

"It's a big deal. This is not just an incremental, technical change in the law," Zuckerberg explained. "This is going to be a seismic shift for all employers of any size in New York State." It's going to require all companies located in New York to do more and spend more on sexual harassment compliance, training, and internal investigations, all while likely increasing liability and litigation in this area, he said.

New York and California have implemented minimum requirements in the form of information materials, which companies are encouraged to reproduce and distribute to their employees. If they choose not to distribute the materials provided, employers in these states must, at a minimum, include the following components in their sexual harassment policy:

  • Language addressing the illegality of sexual harassment, and how it is defined by federal, state, and (where applicable) local law;
  • Examples of prohibited conduct that would constitute unlawful sexual harassment; 
  • Internal, as well as external, avenues for reporting sexual harassment; and
  • A description of legal protections and external remedies informing victims of their rights of redress.

Large, multinational companies with mature ethics and compliance programs may find that they already have many of these provisions in place. The difference is that "now it's the state dictating in fairly specific terms what your policy should look like," Zuckerberg noted.

Investigation protocol

New York law requires employers to include in their sexual harassment policy a complaint form for employees to report alleged incidents of sexual harassment. Employers are encouraged to download the model complaint form provided and share it with their employees. Companies in New York must also take steps to preserve documents, e-mails, or phone records relevant to the allegations, and interview all parties involved, including any relevant witnesses.

Additionally, an increasing number of states — like New York and Vermont— are expanding the scope of sexual harassment protections to include employees and non-employees alike, including interns (paid or unpaid) contractors, subcontractors, vendors, consultants, or anyone else providing work or services for the company. For many years, companies have relied on the notion that employment laws applied only to employees. "Now, the state is making it clear that anti-harassment laws apply to anybody who provides services to the employer," Zuckerberg said. 

Mandatory training

The requirements that will have the most direct and immediate impact from a compliance standpoint are the training obligations.

New York employers, for example, must provide all of their employees with sexual harassment prevention training by Jan. 1, 2019, which means companies must be on "a pretty focused rush to get that done," Zuckerberg said. Thereafter, they must provide training to all new employees within 30 days after their hiring and, again, to all employees each calendar year. Even temporary and part-time employees must receive training. 

Mandatory arbitration clauses

Several states, including New York, California, Vermont, Washington, and Maryland, have also passed legislation banning the use of mandatory arbitration clauses, effectively prohibiting companies from requiring that claims of sexual harassment be resolved through arbitration. Compliance officers and in-house counsel will want to assess whether arbitration provisions comply with the new requirements, or whether changes are required on a going-forward basis. 

"That has the potential to increase the likelihood of litigation in this area, because a lot of times plaintiffs don't want to have to arbitrate these claims. They'd rather be in court," Zuckerberg explained. "The fact that this legislation seeks to open the courtroom door on these types of claims is significant."

Click here to read the full interview in Compliance Week.

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