Frequently Asked Questions

Q1. I am not directly employed by the company where I was harassed, am I still covered?

A1. Yes, covered individuals include contractors, subcontractors, vendors, consultants, or anyone providing services in the workplace. These covered individuals are protected under New York State’s Human Rights Law from harassment and other discriminatory actions at any location where they are working. Protected individuals include persons commonly referred to as independent contractors, “gig” workers, and temporary workers. Also covered are individuals providing equipment repair, cleaning services, or any other services provided through a contract with the employer.

Q2. I work for a maintenance contractor, and I clean the offices of a business. An employee of the building, who is not employed by the business that I clean for, is asking me repeatedly for dates. I don’t like this behavior. What can I do?

A2. Your employer and the business that operates in your worksite are both required to provide you with a harassment-free workplace. You should report the conduct to the worksite business, and also to your own employer. Both are responsible to address the problem. If you do not trust how your employer will react, you may also file a complaint with NYS DHR.

Q3. The copier repair person always makes sexual jokes which are upsetting to me. My boss says that she can’t do anything about it. Is that true?

A3. No. Your employer is required to provide a workplace free from sexual harassment and discrimination, regardless of who the harasser is. Your employer is required to take appropriate action based on your complaint. This can include bringing the complaint to the contracted worker’s employer, speaking with the contracted worker directly, or terminating the contract of the worker. If you do not trust how your employer will react, you should file a complaint with NYS DHR.

Q4. A temporary worker tells me sexually explicit stories about his “dates” regularly. I complained, but my supervisor says he doesn’t have any authority over the temps. Is this true?

A4. No. Your supervisor is required to take your complaint to someone who can investigate and take corrective action. You can complain to another supervisor or manager at your employer, or you can file a complaint with NYS DHR, or you can do both.

Q5. I perform work as an independent contractor, and much of my work is performed off the premises of the business. However, when I come into the office to meet with the person who oversees my work, he tries to start an unwelcome sexual relationship with me. He is the only person at the business that I have any contact with. How would I make a complaint?

A5. Employers are encouraged to post and make available their sexual harassment prevention policies to all who are doing business in their workplace. This would include an independent contractor. As a covered individual, any independent contractor is able to complain to a supervisor or manager at the employer, file a complaint with NYS DHR, or both.

Q1. What type of records must employers maintain to verify compliance?

A1. Employers are encouraged to keep a signed acknowledgment and to keep a copy of training records even though no signed acknowledgment of having read the policy is required. These records may be helpful in addressing any future complaints or lawsuits.

Q2. Does the law requiring all employers to establish a sexual prevention policy and annual training apply to New York City employers and does the mandated New York City training meet the training requirements of the New York State Law?

A2. Yes. The law applies to all employers in New York State, including New York City. The New York City Commission on Human Rights is partnered with NYS DHR and NYSDOL so New York City-based employers can comply with both the New York State and New York City training requirements by using the online training provided by the New York City Commission on Human Rights. New York City's online training is available here.

Q3. I run a family business where the only employees are my children and spouse. Why do we need to take the sexual harassment prevention training?

A3. Under New York State policy, employees are protected from harassment by third parties, including customers, clients, and constituents. Additionally, anyone that might do business with an employer such as outside vendors, independent contractors, and gig workers are protected from harassment and discrimination under the state policy. As an employer, it is essential to know your responsibilities should a third party engage in harassment while at your location. It is also essential for your employees, family or otherwise, to understand their rights should they experience harassment from a third party or individual conducting business at your workplace.

Q4. I’ve just hired a nanny for the first time. Are domestic workers covered by this policy, and do I need to adopt a prevention policy and annual training?

A4. Yes, domestic workers are covered by this policy and all employers, regardless of size-- including households employing one person as a nanny or housekeeper-- must adopt a prevention policy and provide an annual training. The model policy and training are available here [insert link] for families to use when hiring domestic workers.

Languages

Q1. Will New York State make resources available for training in languages other than English?

A1. Yes. Materials have been translated into Spanish, Chinese, Korean, Russian, Italian, Polish, Bengali, Urdu, French and Haitian-Creole and are available on this website (link to the translations page). Starting May 31, 2023, these languages will be expanded to include Japanese, Hindi, Albanian, and Greek.

Q2. Am I required to provide the notice, policy, and training in languages other than English?

A2. Yes. Employers must provide employees with these materials in both English and in an employee’s primary language if it is Spanish, Chinese, Korean, Polish, Russian, Haitian-Creole, Bengali, Urdu, French, or Italian. Starting May 31, 2023, these languages will be expanded to include Japanese, Hindi, Albanian, and Greek. Model templates are available online. However, as employers may be held liable for the conduct of all of their employees, employers are strongly encouraged to provide a policy and training in the language spoken by the employee.

Sexual Harassment Prevention Notice

Q1. Can the required sexual harassment prevention notice be delivered digitally?

A1. Yes. The notice must be delivered in writing, which includes in print or digitally (for example, via email). The notice must link to or include, as an attachment or printed copy, the policy and training materials.

Q2. What constitutes training materials as part of the notice?

A2. Training materials include any printed materials, scripts, FAQs, outlines, handouts, presentation slides, and more.

Q3. What if the training materials are delivered through software or video?

A3. If you are using the state’s model materials or other training materials available online, an electronic or printed copy, or a link to such materials is sufficient. In other instances, employers and training providers should make reasonable efforts to provide the information, including providing printouts or links to training materials, scripts, slides, or other materials.

Q4. What does "at the time of hiring" mean?

A4. It is recommended that the employer provides this notice prior to or at the beginning of an employee’s first day of work.

Policy

Q1. How can employers provide their policy to employees?

A1. Employers must provide employees with their policy in writing both at the time of hiring and during each annual training. This is done in the form of a notice that must also include sexual harassment prevention training materials. This may be done in print or electronically (for example, via email).

Q2. Is there any employer responsibility to train third-party vendors or other covered individuals who interact one-time or regularly in an office located in New York State?

A2. No. However, posting a copy of your policy in an area that is highly visible further communicates your effort as a responsible employer.

Q3. What should I do if a temporary employee is being harassed by an employee of another company?

A3. In such circumstances, you should inform both the company and the temporary employee’s firm. However, if you are able to take action in order to prevent or end such harassment you should do so, as outlined in the policy.

Q4. What policy, if any, must be provided to contractors, subcontractors, vendors, and consultants?

A4. Employers are not required to provide a policy to independent contractors, vendors, or consultants because individuals are not employees of the employer. However, under the New York State Human Rights Law the employer is responsible and can be liable for the actions of these workers while in the employer’s workplace. Employers are encouraged to provide the policy and training to anyone providing services in their workplace for that reason.

Q5. If an employer already has established investigative procedures which are similar, but not identical to those provided in the model policy, can the employer deviate from the model’s specific requirements and remain compliant with the law?

A5. Yes. However, the investigative procedures that the employer will be using should be outlined in the employer’s policy.

Q6. Does the complaint form need to be included, in full, in the policy?

A6. No. Employers should, however, be clear about where the form may be found, for example, on a company’s internal website.

Training

Q1. Who is considered an Employee for the training requirement? And when does the training need to be completed?

A1. “Employee” includes all workers, regardless of immigration status. Employee also includes exempt or non-exempt employees, part-time workers, seasonal workers, and temporary workers.

Q2. How often must employees receive sexual harassment training?

A2. Employees must be trained at least once per year. This may be based on the calendar year, anniversary of each employee’s start date, or any other date the employer chooses.

Q3. How soon do new employees need to be trained?

A3. There is no requirement for training to take place within a particular amount of time. As employers may be liable for the actions of employees immediately upon hire, the state encourages training as soon as possible. Employers should distribute the policy to employees at the time of hiring as part of a notice, which also includes training materials.

Q4. Is there a minimum number of training hours employees must complete each year?

A4. No, as long as employees receive training that meets or exceeds the minimum standards, they have met the state’s requirements.

Q5. What are the obligations of employment agencies? What about employees who received the same training from another employer within the past year?

A5. The law requires that employers provide a sexual harassment prevention policy and training on an annual basis to all employees. If an employee can show they completed training within the same calendar year under a previous employer or temporary help agency, an employer may choose to deem the training requirement satisfied.

An agency or any other worker organization (e.g., a labor union) may choose to provide training to workers, however, the employer may still be responsible for the employee’s conduct and understanding of policies. Employers should train the employee on any nuances and processes specific to the company or industry.

Q6. I am an employer based in New York State but also have employees who work exclusively from an office in another state. Do they need to be trained as well?

A6. No. Only employees who work or will work in New York State need to be trained. However, if an individual works a portion of their time in New York State, even if they’re based in another state, they must be trained.

Q7. Are minor employees (e.g., child actors) required to take sexual harassment training?

A7. Yes. However, those employing children under the age of 14 may opt to simplify the training and policy while still meeting the minimum requirements.

Q8. What does “interactive training” mean?

A8. New York State law requires all sexual harassment training to be interactive. Training may be online, so long as it is interactive. Examples of employee participation include:

• If the training is web-based, it has questions at the end of a section and the employee must select the right answer;
• If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner;
• In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions;
• Web-based or in-person trainings that provide a Feedback Survey for employees to turn in after they have completed the training

NOTE: Any one of the above examples would meet the minimum requirement for being interactive. An individual watching a training video or reading a document only, with no feedback mechanism or interaction, would NOT be considered interactive. The model training options offered by New York State and outlined in the Employer Toolkit on the Combating Sexual Harassment website meet the interactive requirement.

Q9. Is a live trainer required and does a trainer need to have a certification?

A9. No. While a good option for effective and engaging trainings, a live trainer is not required. Live trainers may appear in person or via phone, video conference, etc.

No certification is required for a live trainer and the state does not currently certify or license training providers.

Q10. May I use a third-party vendor to provide training? How do I ensure it meets the standards?

A10. You may use a third-party vendor or organization or deliver the training with existing employees or managers. You should review any third-party training to ensure it meets or exceeds the minimum standards required under the law.

Q11. Are there different training requirements for employees in managerial/supervisory roles?

A11. Employers must make managers and supervisors, as well as all employees, aware of the extra requirements for those in managerial/supervisory roles. The model training does address the additional requirements, and employers may choose to provide additional or separate training to supervisors and managers.

Q12. What happens if some employees fail to take the training despite an employer’s best efforts to make it available, and to require everyone to take it?

A12. Employers are required to ensure that all employees receive training on an annual basis. Employers may take appropriate administrative remedies to ensure compliance.

Q13. Are businesses required to pay workers for the time spent in training, for instance, during the onboarding process before their actual assignment begins?

A13. Yes. Employers must follow federal regulations (e.g., 29 CFR 785.27-785.32), which generally require that employer-provided training time is counted as regular work hours.

Q14. How does the sexual harassment prevention training time impact the Hospitality Wage Order’s 80/20 rule?

A14. Like other mandatory trainings, this does not impact the percentage in the Order and should be treated in line with other employer trainings. It should be either added in line with the existing proportion or training hours should be excluded from the 80/20 calculation.

Q15. Are sections in the model training materials that are not expressly required in the law mandatory?

A15. No, but they are strongly recommended. The materials provided by the state should be considered the baseline, not the maximum. In addition, employers are encouraged to exceed the minimum training requirements.

Q1. What is the law on mandatory arbitration clauses in the context of discrimination claims?

A1. Mandatory arbitration clauses are not enforced by NYS DHR, which intends to proceed with any discrimination claims (not just sexual harassment claims) filed with NYS DHR. Regardless of any mandatory arbitration provision of an individual or collective bargaining contract, claims filed with NYS DHR generally have NOT been compelled to arbitration by the courts. However, this issue is yet to be resolved by higher level judicial review, and in any particular case, a judge might order NYS DHR to stop processing the claim, and NYS DHR would have to comply.

For cases brought in state or federal court, mandatory arbitration clauses are generally enforced, requiring the parties to submit discrimination and other claims to arbitration, rather than proceeding in court. The resulting arbitration decisions are final and not subject to review by the courts except in extremely limited circumstances.

However, effective March 3, 2022, there is an amendment to the Federal Arbitration Act (FAA) that prohibits mandatory arbitration of sexual harassment claims. The amendment is found at 9 USC §§ 401-02. This statute applies to sexual harassment claim only, not any other types of discrimination claims.

Q2. Is there a New York State law on mandatory arbitration in the context of discrimination claims?

A2. Yes, however, it is largely overruled (“preempted”) by the Federal Arbitration Act (FAA). Under New York State law found at Civil Practice Law and Rules § 7515, mandatory arbitration clauses are prohibited if they require arbitration of any discrimination claims. However, this New York State law is subject to “preemption” by the Federal Arbitration Act (FAA), which overrules state and local laws that are contrary to it, and broadly requires the enforcement of agreements to arbitrate. Court rulings have held that the provisions of § 7515, prohibiting mandatory arbitration of all discrimination claims, are preempted. Likewise, the amendment to the FAA prohibiting mandatory arbitration of sexual harassment claims provides broader protections which overrule the aspects of § 7515 that are more narrow.

Q3. Does the ban on mandatory arbitration for sexual harassment claims apply to contracts that were entered into prior to March 3, 2022?

A3. As the federal amendment is recent, the answer must be tentative, but a plain reading of the amendment would indicate that the prohibition against mandatory arbitration of sexual harassment claims does apply to existing contracts entered into prior to the effective date. Claims for sexual harassment that occurred prior to the effective date may also be exempt from mandatory arbitration. This law appears to make the mandatory arbitration of a sexual harassment claim unlawful as of its effective date, without regard to any preexisting or new contractual provision to the contrary.

Q4. Does the ban on mandatory arbitration of sexual harassment claims apply to provisions of a collective bargaining agreement (CBA)?

A4. The federal prohibition against mandatory arbitration of sexual harassment claims makes no exception for CBAs. Thus, federal law overrules a provision in New York Civil Practice Law and Rules § 7515, which had an exemption for CBAs.

Q5. What are the details of the federal amendment to the FAA?

A5. The law has several key aspects:

• The prohibition of mandatory arbitration applies to claims for sexual assault, as well as sexual harassment.
• The prohibition applies to any sexual harassment or assault claim under any federal, state, or tribal law; therefore, the probation is NOT limited to those sexual harassment claims that could be pursued under federal law. (Federal claims for sexual harassment are limited to employers with 15 or more employees, and require proof of a higher level of severity of the harassment.)
• The law also prohibits and makes unenforceable any provision of a contract that blocks “class actions” regarding sexual harassment or assault; it says that there can be no agreement that an individual cannot “participate in a joint, class, or collective action in a judicial, arbitral, administrative, or other forum.”
• Even if the arbitration agreement gives the authority to the arbitrator to decide whether the agreement is enforceable and whether it applies to a particular claim, the issue of whether the prohibition on mandatory arbitration of sexual harassment claims applies to a particular claim can only be decided by a court of law.

Q1. What is a nondisclosure agreement in the context of discrimination claims?

A1. Under the law, a nondisclosure agreement is defined to include any resolution of any discrimination claim that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment.

Q2. What does the law say about such nondisclosure agreements?

A2. The law generally bans such nondisclosure agreements in discrimination cases, except for those where the person who complained prefers such a nondisclosure agreement. Specifically, the law takes away the authority of employers to include, or agree to include, any term or condition that would prevent the disclosure of the underlying facts and circumstances of the discrimination unless the condition of nondisclosure is the preference of the person who complained.

Q3. How do the parties establish that confidentiality is the complainant’s preference?

A3. The law requires that “such preference shall be memorialized in an agreement signed by all parties.” In simpler terms, all those involved will sign an agreement stating that the nondisclosure agreement is at the request of the person claiming harassment or discrimination.

Q4. Is there a particular process that must be followed for memorializing the complainant’s preference?

A4. Yes, the law spells out and requires the following three-step process and timeframe:

Any such 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. The person who complained shall have 21 days from the date such term or condition is provided to consider such term or condition.

If after 21 days, such term or condition is the preference of the person who complained, such preference shall be memorialized in an agreement signed by all parties.

For a period of 7 days following the execution of an agreement containing such a term, the person who complained may revoke the agreement and the agreement shall not become effective or be enforceable until such revocation period has expired.

Furthermore, any such term or condition is void to the extent that it prohibits or otherwise restricts a complainant from: (i) initiating, testifying, assisting, complying with a subpoena from, or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (ii) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled.

Q5. Can the employer initiate the process by suggesting a term or condition of confidentiality?

A5. As long as the statutory process and timeline summarized above is followed, the law does not prohibit the employer from initiating that process.

Q6. Does the process established under the law mean that the parties will need to enter into two separate documents providing for nondisclosure: 1) an agreement that memorializes the preference of the person who complained, and 2) whatever documents incorporate that preferred term or condition as part of a larger overall resolution between the parties?

A6. Yes, as summarized above, employers cannot include or agree to include such nondisclosure language in documents resolving discrimination matters unless the complainant’s preference for that language has been documented in an agreement signed by all parties after following the three-step procedure summarized above.

Q7. Can the 21-day period be waived, shortened, or calculated to overlap with the 7-day revocation period?

A7. No. The text of the law requires that the 21-day period expire before the plaintiff’s preference can be documented in the final agreement signed by all parties, and the minimum 7-day period does not start to run until after the final agreement is executed.

Q8. Are the law’s provisions for memorializing a plaintiff’s preference for confidentiality intended to track federal provisions for waving age discrimination rights?

A8. While both this state law and federal age discrimination laws reference 21-day consideration periods and 7-day revocation periods, the context, language, and purposes of the state and federal provisions are not the same. Specifically, while the practice of some under the federal law is to fold waivers into standard representations and warranties provisions of settlement agreements that can be presented and executed on the spot, in a single agreement, without waiting for the 21-day consideration period to expire, the state law requires a separate agreement to be executed after the expiration of the 21-day consideration period before the employer is authorized to include confidentiality language in a proposed resolution.

Q9. Where can I find the text of the ban on nondisclosure agreements in cases involving discrimination?

A9. The relevant provisions of the law [effective October 11, 2019] are identified and quoted below:

CPLR§ 5003-b. Nondisclosure agreements.

Notwithstanding any other law to the contrary, for any claim or cause of action, whether arising under common law, equity, or any provision of law, the factual foundation for which involves discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law, in resolving, by agreed judgment, stipulation, decree, agreement to settle, assurance of discontinuance or otherwise, no employer, its officer or employee shall have the authority to include or agree to include in such resolution any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the plaintiff’s preference. Any such term or condition must be provided to all parties, and the plaintiff shall have twenty-one days to consider such term or condition. If after twenty-one days such term or condition is the plaintiff’s preference, such preference shall be memorialized in an agreement signed by all parties. For a period of at least seven days following the execution of such agreement, the plaintiff may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired.

General Obligations Law 5-336. Nondisclosure agreements.

1.

(a) Notwithstanding any other law to the contrary, no employer, its officers or employees shall have the authority to include or agree to include in any settlement, agreement or other resolution of any claim, the factual foundation for which involves discrimination, in violation of laws prohibiting discrimination, including but not limited to, article fifteen of the executive law, any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant’s preference.

(b) Any such term or condition must be provided in writing to all parties in plain English, and, if applicable, the primary language of the complainant, and the complainant shall have twenty-one days to consider such term or condition. If after twenty-one days such term or condition is the complainant’s preference, such preference shall be memorialized in an agreement signed by all parties. For a period of at least seven days following the execution of such agreement, the complainant may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired.

(c) Any such term or condition shall be void to the extent that it prohibits or otherwise restricts the complainant from: (i) initiating, testifying, assisting, complying with a subpoena from, or participating in any manner with an investigation conducted by the appropriate local, state, or federal agency; or (ii) filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or other public benefits to which the complainant is entitled.

2. Notwithstanding any provision of law to the contrary, any provision in a contract or other agreement between an employer or an agent of an employer and any employee or potential employee of that employer entered into on or after January first, two thousand twenty, that prevents the disclosure of factual information related to any future claim of discrimination is void and unenforceable unless such provision 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.