New York State has updated its guidance concerning the new rules regarding discrimination, harassment, and retaliation claims under the New York State Human Rights Law (“NYSHRL”) (For more detail concerning the NYSHRL, see our previous client alert: https://putneylaw.com/client-news/nys-amendments-to-workplace-discrimination-laws). Specifically, the Frequently Asked Questions (“FAQs”) section of the State’s website now provides additional clarity on employers’ obligations under the expanded NYSHRL.
The revised FAQs require employers to provide employees sexual harassment training and a notice in both English and the employee’s primary language if that language is listed as one of the languages for which the State has provided templates (including Spanish, Chinese, Korean, Polish, Russian, Haitian Creole, Bengali, or Italian). The State also expanded sections that previously related only to sexual harassment claims to include discrimination claims generally.
I. Distribution of a Sexual Harassment Notice and Policy and Training Information
New York employers are required to distribute, at the time of hire, and upon each annual training, a notice containing the employer’s (1) sexual harassment prevention policy, and (2) the training materials presented as part of the sexual harassment prevention training program. The FAQs clarify that the training materials, which must be included as part of the notice, consist of “any printed materials, scripts, Q&A’s, outlines, handouts, PowerPoints slides, etc.” This notice must be delivered in writing, and includes the option of print or electronic delivery and must link to or include the sexual harassment prevention policy and training materials.
The FAQs also recommend that employers provide the notice prior to the employee’s first day of work to satisfy the “at the time of hire” notice requirement. For current employees, the notice must be provided during each annual training. Employers may supply employees with the training materials by either providing a link to the training materials in lieu of a hard copy, or attaching the training materials to the notice. The FAQs note that the use of materials relating to training that have been provided by the New York City Commission on Human Rights (“NYCCHR”) may also be used by an employer to satisfy obligations under the NYSHRL.
II. Translation Requirements for Sexual Harassment Notice, Policy, and Training Materials
Employers are required to provide the sexual harassment notice, which includes a copy of the policy and the Training Materials, in both English and in an employee’s primary language, if the primary language is Spanish, Chinese, Korean, Polish, Russian, Haitian-Creole, Bengali, or Italian. Translated materials compliant with the NYSHRL were posted by the State earlier this year. If an employee designates a primary language not included in the list above, the FAQs “strongly encourage” employers to provide a policy and training in the language spoken by the employee since they may be held liable for the conduct of all their employees.
A. Translation of Non-Disclosure Terms or Conditions in Settlement Agreements
As we informed you in our August 19, 2019, Client Alert, absent a claimant’s wish to include them, the law prohibits non-disclosure and confidentiality terms or conditions in agreements resolving discrimination, harassment, and retaliation claims, to the extent they restrict the complainant from disclosing the facts and circumstances of the underlying claims. The expanded restrictions on non-disclosure agreements — which now pertain to discrimination and retaliation claims — went into effect October 11, 2019.
The FAQs remind employers that “[a]ny such [non-disclosure] term or condition must be provided in writing to all parties in plain English, and, if applicable, the primary language of the person who complained.” This all-encompassing wording could be interpreted to require translating the relevant non-disclosure term into any language that the employee or complainant indicates is their primary language, not just one of the languages in which the State has provided model materials.
III. Confidentiality Agreement Provisions Effective January 1, 2020
The FAQs also remind employers that, effective January 1, 2020, the law voids any provision in an agreement that restricts the disclosure of “factual information related to any future claim of discrimination” unless the agreement “notifies the employee or potential employee that it does not prohibit him or her from speaking with law enforcement, the equal employment opportunity commission, the state division of human rights, a local commission on human rights, or an attorney retained by the employee or potential employee.” Although the FAQ merely reminds employers of the state of the law, employers should take notice of the State’s telling efforts to highlight this issue.
Takeaway for Employers:
Employers should refer to New York State’s guidance contained in the aforementioned FAQs and contact us for assistance when complying with the NYSHRL, as New York State may continue to update and expand its guidance as new issues in the application of the NYSHRL emerge. As the NYSHRL affects virtually every employer, we encourage you to contact us for assistance in complying with or interpreting the NYSHRL and the State’s commentary thereon.
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If you have any questions regarding this alert, or any other issue, please do not hesitate to contact us.