Anti-Harassment Training Update for New York Employers: Are You Compliant?

In April, New York governor Andrew Cuomo signed a sweeping budget bill, which included several major amendments to the New York Human Rights Law (NYHRL). One of the most significant aspects of the bill was the mandate that New York employers adopt robust sexual harassment policies as well as provide mandatory anti-sexual harassment training to all employees, not just managers. Specifically, the law requires employers with four (4) or more employees to adopt sexual harassment policies and training consistent with a model policy and model training prepared jointly by the Commissioner of Labor and the New York State Human Rights Division.

That law became effective on October 9, 2018, and New York state has finally released the model materials, an online “Toolkit for Employers”, including a model sexual harassment policy, a model complaint form, and a model interactive training program. All of the state’s model materials are accessible to employers via a website set up by the government.

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Delaware Joins Growing List of States Passing Anti-Harassment Legislation

Delaware is the latest state to mandate that employers provide anti-harassment training to employees. Delaware joins New York, California, Connecticut, and Maine as states that require employers to provide such training. The new law amends the Delaware Discrimination in Employment Act (“DDEA”), and takes effect on January 1, 2019.

While the DDEA already prohibited discrimination based on sex, the recent amendments are devoted to prevention of sexual harassment in the workplace. The new law amends the DDEA to define sexual harassment and provides the same process used for Title VII violations with regard to exhaustion of administrative remedies prior to filing a private lawsuit.

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New Jersey Equal Pay Data Reporting Forms Released

New Jersey’s comprehensive new equal pay law, the Diane B. Allen Equal Pay Act (the “Act”), took effect last month. The law amends the New Jersey Law Against Discrimination (“NJLAD”) by making it a prohibited employment practice for an employer to compensate an employee who is a member of a “protected class” less than the amount paid to employees who are not members of that protected class for “substantially similar work, when viewed as a composite of skill, effort, and responsibility.” Employers can prove a compensation differential is lawful by showing it is due to a seniority system, merit system, or by satisfying several factors including that the differential is based on legitimate, bona fide factors other than the employee’s membership in a protected class, and that the factors supporting the differential are job-related and based on a legitimate business necessity. The Act extends the NJLAD’s two-year statute of limitations to a six-year statute of limitations for wage discrimination claims.

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Massachusetts Equal Pay Act Took Effect July 1, 2018

Massachusetts recently joined a growing list of states amending their equal pay legislation. On July 1, 2018, the Act to Establish Pay Equity, originally passed in 2016, took effect, amending Massachusetts’ existing Equal Pay Act.

The law bans pay differentials on the basis of sex where two people perform comparable work, adopting the more liberal “equal pay for comparable work” standard, as opposed to the federal law’s “equal pay for equal work” standard. Comparable work is defined as work that requires substantially similar skill, effort, and responsibility that is performed under similar working conditions. Like other equal pay laws, employers can plead certain affirmative defenses in response to an employee’s claim of pay discrimination, if the employer can show the pay differential is due to:

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Westchester County’s Salary History Ban Takes Effect July 9, 2018

Westchester County’s salary history ban, signed on Equal Pay Day in April 2018, took effect on July 9, 2018. The law amends the Westchester County Human Rights Law, and makes it unlawful for an employer, including labor organizations and employment agencies or “agents” thereof, to:

  • rely on the wage history of a prospective employee from any current or former employer in determining wages; and
  • request or require as a condition of being interviewed, as a condition of being considered for an offer of employment, or as a condition of employment, that a prospective employee disclose wage history information.

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Legislative Alert: New Jersey on A Fast Track to Ban Waivers of, and NDAs relating to, Employment Discrimination, Harassment and Retaliation Claims

In the wake of the #MeToo movement, a number of states are considering legislation that would limit an employer’s ability to use non-disclosure agreements (“NDAs”) when settling sexual harassment claims. New York was the first state to enact such legislation, which was passed as part of a wide-ranging budget bill that takes effect July 11, 2018. New York’s law bans non-disclosure provisions in settlements of claims involving sexual harassment allegations, unless confidentiality is the “complainant’s preference,” provided some onerous procedures are complied with. Washington State passed a similar law. Arizona, California, and Pennsylvania are also considering legislation to restrict the use of NDAs.

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