As part of the 2019 State Budget that the New York State Legislature passed and Gov. Andrew Cuomo signed into law, there is significant new sexual harassment legislation that affects all employers in New York State. In light of this legislation and the increasing focus on the issue of workplace sexual harassment, it is imperative that all brewery owners review their existing employment and anti-harassment policies to ensure compliance with the new requirements. They must also be sure they’re prepared to implement mandatory training consistent with pending state guidelines.

Here are the most significant aspects of the new sexual harassment law:

• Except where inconsistent with federal law, it is now unlawful for any written contract to contain a provision requiring the parties to submit any claim of sexual harassment to mandatory arbitration. Any such provision in a written contract will be deemed null and void.
• Settlements, agreements or resolutions of sexual harassment claims may not include a non-disclosure or confidentiality provision unless such provision is the claimant’s preference. A claimant must be given 21 days to consider such a provision, and another seven days to revoke his or her agreement.
• The new law amended the State Human Rights Law to cover sexual harassment of non-employees (such as contractors, vendors, consultants or others providing services pursuant to a contract) at the employer’s workplace(s). Employers will be held liable for sexual harassment of covered non-employees when the employer, or its agents (including supervisors), knew or should have known about the harassment and failed to take immediate and appropriate corrective action.
• Effective Oct. 9, 2108, every employer must adopt and provide to all employees a written sexual harassment prevention policy that meets or exceeds the minimum standards of a model policy prepared by the State Division of Human Rights, and must also provide to all employees, on an annual basis, a sexual harassment training program that meets or exceeds the minimum standards of a model training program developed by the Division of Human Rights.

Here’s What Your Brewery’s Policy Must Include:

On Aug. 24, 2018, the State Department of Labor and Division of Human Rights issued the proposed model sexual harassment policy and training guidelines referenced above. The model policy and training guidelines remain drafts, and comments regarding these documents can be submitted on or before Sept. 12, 2018. It’s unclear as yet whether the model policy and training guidelines will be finalized by the Oct. 9 deadline.

While the draft model is subject to change, it contains a number of notable provisions, including the following requirements:

• A statement that the employer has a “zero-tolerance policy” for any form of sexual harassment;
• A description of potential external remedies for addressing alleged sexual harassment (in addition to filing an internal complaint with the employer), such as filing a complaint with the Division of Human Rights, Equal Employment Opportunity Commission, or local agencies such as the New York City Commission on Human Rights;
• A statement that an investigation of an allegation of sexual harassment “should be completed within 30 days”;
  Inclusion of non-employees (as set forth in the new legislation) as individuals who are protected from sexual harassment in the workplace;
• A statement that reports of sexual harassment can be made verbally or in writing and inclusion of a model complaint form for written complaints.
• New Training Requirements for Employer Policies

The proposed sexual harassment training guidelines require that the annual training be “interactive,” which means that the training must have some level of participation by those being trained. The training must include as many of the following elements as possible:

• Be web-based, with questions asked of employees as part of the program.
• Accommodate questions asked by employees.
• Include a live trainer made available during the session to answer questions.
• Require feedback from employees about the training and the materials presented.

The FAQs published along with the model policy and training guidelines provide that employers must complete the model training or a comparable training for all employees that meets the minimum standards by Jan. 1, 2019. Employers must train every employee at least once per year thereafter. The annual date can be based on the calendar year, anniversary of each employee’s start date, or any other date the employer chooses. New employees must complete the sexual harassment training within 30 calendar days of starting their job.

Bond Schoeneck & King will be conducting a series of breakfast briefings on this topic in 13 locations across New York State from early October to early November. By that time, the model policy and training guidelines will likely be issued in final form. New York State brewery owners can sign up to attend a one of 11 Upstate briefings or one of the 2 Downstate briefings.