Office holiday parties are a time for employees to relax, let loose, knock back a few cold ones, and connect with colleagues on an informal, more personal level, right?   Well, yes and no.

You may have heard stories of sexually inappropriate behavior at annual office holiday gatherings at other organizations.  Why?  Because some people mistakenly believe that when they shed their business suit for the office holiday party, they also shed their obligation to abide by the organization’s professional rules.   But workplace policies, particularly those prohibiting sexual and other forms of unlawful harassment, apply to organization-sponsored events including the annual holiday office party.

Managers and staff must remain professional in attitude, personal appearance and behavior and show the same respect and professionalism to colleagues at events outside of the physical workplace as they do within it.   Managers should be particularly mindful about not commenting on a subordinate’s body or physical attractiveness, or making comments or jokes of a sexual nature (as should co-workers).  In addition, being inebriated does not ever excuse a supervisor, co-worker, or non-employee such as a Board member or donor, from engaging in conduct that might be perceived as unwelcome sexually inappropriate behavior.

An employer’s legal obligation to protect its employees from unlawful conduct continues during these events.  What is intended to be a fun time can easily derail into a lawsuit for an organization that has not laid clear ground rules, and can result in the firing of an employee who does not abide by workplace rules prohibiting sexual harassment.

Aside from the legal risks, organizations that fail to prevent sexual harassment may face damage to their reputation, mission, employee morale, and worker productivity.

The following actions may help your organization minimize the risk of this kind of trouble:

• Set rules around office events, including expectations for supervisors in interacting with subordinates and co-worker interactions generally.

• Decide whether alcohol will be served and if so, provide reminders that employees should drink responsibly. Determine how much alcohol will be served and whether a ticket maximum should be used, how long the party will last, whether the party should be held at the office during office hours, and whether employee family members should be invited to minimize inappropriate behavior.
• Re-circulate the sexual harassment and retaliation prevention policies shortly before the annual holiday party and have employees sign an annual acknowledgement of receipt of the policies.
• Conduct annual sexual harassment and retaliation-prevention training shortly before the office holiday event.

A number of jurisdictions like New York require employers to issue sexual harassment policies and complaint forms, and to conduct annual sexual harassment prevention training.

For additional measures to prevent workplace sexual harassment, listen to my interview on Tony Martignetti Nonprofit Radio Sexual Harassment in Nonprofits 

Enjoy the holidays!

Lisa M. Brauner is the head of the Employment Law Practice at Perlman & Perlman.  She advises employers on how to reduce litigation risk and resolve employee issues. She offers training in preventing workplace discrimination, harassment, retaliation and on other workplace law-related topics. Contact her at  lisa@perlmanandperlman.com; 212-889-0575.

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New Model Policy:  New York State Department of Labor and New York State Division of Human Rights have created a model sexual harassment prevention policy and complaint form that employers may use to comply with the law.  An employer’s sex harassment prevention policy must meet or exceed the minimum standards of New York State’s model policy.

New Deadline for Conducting Sexual Harassment Prevention Training: October 9, 2019:  All employers in New York State must conduct interactive sexual harassment prevention training of their employees by October 9, 2019, giving them an additional year to create their training programs, and then must conduct trainings on an annual basis thereafter.  New York State has issued minimum standards for sex harassment prevention training and a model training as well.

New York City enacted its own sex harassment policy and training requirements, effective April 1, 2019, for employers with 15 or more employees.  Those requirements include conducting a separate training for supervisors setting out their special responsibilities under the law, addressing bystander intervention, and training new employees within 90 days of hire.  As a reminder, by September 6, 2018, New York City employers were required to post a notice of anti-sexual harassment rights and responsibilities in employee breakrooms and employee common areas in English and Spanish and distribute an information sheet to all new hires regarding sexual harassment and their rights.

Sexual Harassment Prevention Policy Notice:  New York State has also issued a sexual harassment prevention policy notice to be displayed in the workplace.  The notice informs employees of the sex harassment prevention policy and who to contact at the employer if an employee has a complaint of sexual harassment.

New York State FAQ:  The New York State FAQ indicates that employers should provide the policy and training in the employees’ primary language.  For instance, New York employers with Spanish-speaking employees should have their sex harassment prevention policy translated into Spanish and training should also be conducted in Spanish.  New York State expects to translate its model policy template at some point into Spanish but that version is not yet posted on New York State’s website.  If the State templates are not in the employee’s primary language, then the employer may provide a policy and training only in English.

Recommendations: Employers in New York State should issue their updated sex harassment prevention policies (and complaint form) to employees by October 9, 2018 if they have not already done so, schedule training, and post the sexual harassment policy notices.

Our employment law department conducts sexual harassment prevention trainings that comply with New York State and New York City’s mandates. Please contact Lisa Brauner, Head of Perlman & Perlman LLP’s Employment Law Practice, at: lisa@perlmanandperlman.com or 212-889-0575 to schedule a training (and update the employee handbook) for your organization.

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Effective September 6, 2018, New York City employers must display a notice of anti-sexual harassment rights and responsibilities poster in employee break rooms and employee common areas in English and Spanish and distribute an information sheet to employees regarding sexual harassment and their rights, upon hire.  Last week, the New York City Commission on Human Rights launched a web page containing resources about sexual harassment prevention.[1]

Effective October 9, 2018, all employers in New York State must provide mandatory sex harassment prevention training to their employees and implement sex harassment prevention policies that comply with or exceed the requirements of model policies issued by New York State Division of Human Rights and New York State Department of Labor.

Background Summary

These recent developments follow on the heels of legislation implemented at the State and local level.  Specifically, in April 2018, Governor Cuomo signed measures in the 2018-19 budget bill requiring employers in New York State to adopt sexual harassment prevention policies and conduct annual training on such policies, restricting the use of non-disclosure and arbitration provisions related to claims of sexual harassment, and extending workplace protections against sexual harassment to non-employees, among other things.[2]

In May 2018, the New York City Council enacted the Stop Sexual Harassment in NYC Act, to prevent sexual harassment in the workplace. The law requires private employers with 15 or more employees in New York City to conduct annual, interactive anti-sexual harassment training for all employees starting April 1, 2019.

New Legal Requirements for New York State and New York City Employers

Below is a chronology of the timing of new legal requirements for employers in New York State and New York City:

Sexual harassment prevention postings, policies and training

September 6, 2018: New York City employers must display a notice of anti-sexual harassment rights and responsibilities poster in employee breakrooms and employee common areas in English and Spanish and must distribute an information sheet to employees regarding sexual harassment and their rights, upon hire.  Last week, the New York City Commission on Human Rights issued a sample notice and fact sheet on its website for use by employers that satisfies this requirement.[3]

October 9, 2018:  Policy and annual training requirement:  Employers in New York state must adopt a sexual harassment prevention policy that meets the following specified requirements:

• Provide examples of prohibited (sexual) conduct
• Provide information on state and federal laws concerning sexual harassment and remedies available to victims
• Include a procedure for timely and confidential investigation of complaints that ensures due process for all parties
• Inform employees of their rights and all available forums for adjudicating complaints administratively and judicially
• Include a standard complaint form
• State that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisors and managers who knowingly allow such behavior to continue
• State that retaliation against individuals who complain of sexual harassment or those who testify or assist in any legal proceeding is unlawful

The New York State Division of Human Rights and New York State Department of Labor must issue model policies and the employer’s policy must meet or exceed the requirements of those model policies.  The agencies have not yet issued the model policies.

April 1, 2019: New York City employers with 15 or more employees are required to conduct annual interactive, sexual harassment prevention training for all employees, and within 90 days of a new hire start. Such training must include, but is not limited to:

• Interactive (participatory) training, such as interactions between trainer and trainee, and use of audio-visuals
• Explanation of sexual harassment as a form of unlawful discrimination
• Description of what sexual harassment is, and is not, using examples
• Explanation of internal and external complaint processes to address sex harassment claims, including judicial fora and legal remedies
• Prohibition of retaliation after a complaint has been raised
• Importance of bystander intervention
• Additional interactive training for supervisors and managers which should include: (1) specific responsibilities of supervisors and managers in preventing sexual harassment and retaliation, and (2) measures that supervisors and managers may take to appropriately address sexual harassment complaints

The New York City law requires employers to keep a record of all trainings and employee acknowledgement of attending the training, which employers must maintain for at least three years and be made available for inspection by the New York City Commission on Human Rights upon request.

January 1, 2019:  Any employer submitting a bid to New York State or any of its public departments or agencies for a public contract will need to include a prescribed statement in the bid certifying compliance with the sexual harassment prevention policy and annual training requirements. Failure to provide such certified statement may result in ineligibility for the contract.

Organizations with contracts with New York City must also include their anti-sexual-harassment policies in their applications for City business.

Restrictions on non-disclosure provisions

Effective July 11, 2018, non-disclosure provisions in agreements settling claims of sexual harassment are prohibited, unless the complainant prefers to include a non-disclosure requirement.  If a non-disclosure provision is presented to a complainant in connection with a settlement, s/he has 21 days to consider it and if, after 21 days, the complainant’s preference is to include the provision, then the parties must memorialize such preference in writing. The complainant then has 7 days to revoke her signed agreement.

Restrictions on mandatory arbitration clauses

Effective July 11, 2018, New York’s Civil Practice Law and Rules (“CPLR”) was amended to prohibit employers from using arbitration to resolve claims of sexual harassment.   The enforceability of such a restriction is questionable since the U.S. Supreme Court has repeatedly upheld parties’ use of arbitration as a forum to resolve employment disputes under the Federal Arbitration Act (FAA), and has rejected public policy arguments as a means to override parties’ choice of arbitration under the FAA.   Nonetheless, employers in New York would be well-advised to comply with New York law and this amendment to the CPLR.  With respect to union employees, however, if there is a conflict between this prohibition and a collective bargaining agreement, the collective bargaining agreement will control.

What Nonprofit Organizations Are Doing in Response to #MeToo

In addition to conducting the required annual trainings for supervisors and staff and updating sex harassment prevention policies and procedures, a number of non-profit organizations have taken some concrete steps to eradicate workplace sexual harassment, including:

• Requiring grant recipients to disclose any finding of sexual or other harassment involving grant personnel, to disclose the placement of any individuals on administrative leave relating to harassment investigations or findings, and suspending or terminating a grant. Researchers may be banned from seeking federal grants for some period of time as well, potentially
• Training board members on an organization’s sex harassment policies and procedures, creating an HR committee on the Board to ensure Board awareness of allegations of sex harassment, and seeking “360 performance reviews” of the CEOs/Executive Directors by staff to determine whether there are systemic issues relating to sex harassment or failure to adequately address such complaints
• Implementing codes of conduct at conferences sponsored by nonprofit organizations and ensuring attendees are aware of how to make complaints of inappropriate conduct during such conferences
• Reviewing policies and practices carefully to determine if there are other ways to manage risk and ensure employees are safe
• Ensuring that mandatory conferences/events or destinations where organizations are sending their employees are not unsafe spaces for an organization’s workers and that workers know how to make complaints to their employing organization if they feel unsafe while working outside the office
• Ensuring high-level hires and board members are properly “vetted” to ensure no past history of sexual harassment claims or findings; and of course,
• Obtaining employment practices liability insurance to provide coverage in the event of a claim of sexual harassment.

It remains an open question whether State Attorneys General or at least New York’s Attorney General will– now or at some point–require nonprofit organizations to disclose whether they have sexual harassment prevention policies and complaint procedures and conduct annual sex harassment prevention trainings, and/or the number and amounts of sex harassment settlements.  Those numbers may be material to an inquiring Attorney General as to whether tax-exempt donations are being directed to programming and operations to support an organization’s mission or instead to pay off the misdeeds of an employee.  It also remains to be seen whether States other than California will enact legislation to provide immunity from defamation to employers who report to prospective employers whether they would not rehire an employee due to a finding of sexual harassment.

Practical next steps/recommendations

Employers in New York State should review and update their existing policies and training programs addressing sexual harassment prevention, any contracts with New York State or City agencies, and any mandatory arbitration and confidentiality provisions regarding sexual harassment, to ensure compliance with the new legal requirements.  Employers in New York State that do not currently have such policies and/or training programs will need to adopt them promptly to comply with the new laws.

Our employment law department conducts civility/respect in the workplace trainings. Please contact Lisa Brauner, Head of Perlman & Perlman LLP’s Employment Law Practice, at: lisa@perlmanandperlman.com or 212-889-0575 to schedule a training (and update the employee handbook) for your organization by the October 9^th deadline.

[1] See https://www1.nyc.gov/site/cchr/law/stop-sexual-harassment-act.page.

[2] In addition, any employee of a “public entity” in New York State (including government entities operating a public school, college or university) who has been found personally liable for intentional wrongdoing related to a sexual harassment claim must reimburse the State for payment of  funds made on employee’s behalf in satisfaction of that judgment.

[3] See https://www1.nyc.gov/site/cchr/law/stop-sexual-harassment-act.page

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