NYC Issues Guidance to Employers

Earlier this year, the New York City Council enacted the Stop Sexual Harassment in NYC Act, as we previously reported in our April 2018 alert and August 2018 alert.

The Act mandates sexual harassment prevention programs for all New York City employers and includes both notice and training requirements. Recently, the New York City Commission on Human Rights released responses to frequently asked questions (FAQs), which provide helpful guidance to employers in complying with their obligations under the Act.

Sexual Harassment Prevention Training

Employers with 15 or more employees and independent contractors at any point within the prior calendar year are required to begin training their employees and independent contractors annually (i.e., every calendar year) as of April 1, 2019. Employers only need to train employees and independent contractors who work more than 80 hours in a calendar year and work for at least 90 days. However, employers are not required to re-train their independent contractors if the independent contractors already received the annual training elsewhere.

The Commission is in the process of developing a free online training program that will satisfy the Act’s training requirements and also comply with New York State’s mandatory anti-sexual harassment training requirements. The Commission intends to make the training available to the public on its website on or before April 1, 2019. Alternatively, employers may create and provide their own annual training (or hire an outside party like employment counsel to do so) as long as the training includes the required elements detailed in the Act, such as:

• An explanation of sexual harassment as a form of unlawful discrimination under local, state, and federal law;

• A description of sexual harassment and examples;

• Any internal employer complaint process available to employees for addressing sexual harassment claims;

• The complaint process available through the Commission, the New York State Division of Human Rights, and the U.S. Equal Employment Opportunity Commission, and contact information for these agencies;

• The prohibition of retaliation against employees and examples;

• Information concerning bystander intervention; and

• The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation and the measures they may take to address complaints.

Employers are required to keep a record of all trainings documents, including signed employee acknowledgements that they participated in the required training, for a minimum of three years. Such records must be made available to the Commission for inspection upon request.

Notice Posting

The Act requires employers to post a notice of employees’ rights under the law. The required notice must be posted in English andSpanish in conspicuous locations accessible to all employees (e.g., breakrooms and other common areas). However, if a convenient physical location is not available or electronic posting is the most effective method of reaching employees, the notice may be posted virtually on an electronic bulletin board easily accessible to all employees. If employers have multiple worksites within New York City, they must post the notice at all such sites. If employers have remote workers, they can provide the notice by email.

The notice does not need to be printed in color; a black and white copy satisfies the requirements. The Commission intends to make the notice available in nine additional languages for employers’ use.

Fact Sheet Distribution

In addition to the posting requirements, employers must provide a fact sheet to all new employees at the time of hire and by no later than the end of each employee’s first workweek. The fact sheet can be included in an employee handbook or with other onboarding materials for new employees. It may be distributed by any print or electronic means that employers ordinarily use to communicate with their employees. The fact sheet currently is available in both English and Spanish.

Legal Standard

Finally, the Commission has clarified that the Act does not change the legal standard for gender-based harassment under the New York City Human Rights Law; the existing legal standard remains the same.

For more information about this alert, please contact Carolyn D. Richmond at 212.878.7983 or crichmond@foxrothschild.com, Glenn S. Grindlinger at 212.905.2305 or ggrindlinger@foxrothschild.com, or any member of the firm’s Hospitality Practice Group.

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