New York City Executive Order 64 (the "Order") imposes new sexual harassment reporting requirements on organizations that contract with New York City agencies for "human services." The order, which took effect on March 3, 2021, requires city agencies to amend existing contracts to impose these reporting requirements; the Department of Social Services has begun to inform contracting agencies of their obligations under the Order.
The Order covers any organization that provides services to city agencies related to "day care, foster care, home care, homeless assistance, housing and shelter assistance, preventive services, youth services, and senior centers; health or medical services including those provided by health maintenance organizations; legal services; employment assistance services, vocational and educational programs; and recreation programs." See N.Y.C. Admin. Code § 6-129(c)(21).
Under this Order, covered organizations are now required to make the following information available to NYC's Department of Investigation (DOI):
- A copy of the organization's sexual harassment policies, including complaint procedures;
- A copy of any complaint or allegation of sexual harassment or retaliation brought by an employee, client, or any other person against the chief executive officer or equivalent principal of the organization;
- A copy of the final determination or judgment regarding any complaint or allegation; and
- Any additional information the DOI requests to effectuate its review of any investigation and determination.
This information must be uploaded through PASSPort, the city's digital Procurement and Sourcing Solutions Portal. Copies of complaints or allegations raised must be provided to the DOI via PASSPort within 30 days of receipt. Any names or other identifying information of individuals, other than the accused, that are mentioned in any complaint, final determination, or judgment must be redacted. Although it is not entirely clear, it appears that the sex harassment policy must be uploaded even in the absence of a complaint. Providers will be required to certify annually in writing that they have filed all required reports or that they have no information to report.
The DOI reserves the right to later request information that had been redacted previously; covered organizations will be required to make that information available to the DOI. The DOI will review any materials received that relate to a complaint or allegation of sexual harassment and, at the conclusion of such review, will provide its findings in a confidential manner to all city agencies that contract with the covered organization. City agencies will be permitted to consider the DOI's findings or an organization's failure to furnish the above information when determining whether to continue, modify, amend, or renew a contract.
This obligation will be reflected in all future city contracts, renewals, amendments, and modifications. In addition, each year, the board of directors or equivalent authority of an organization will be required to upload to PASSPort a written certification that all required reports have been made or that there was no information to report.
Nothing in this Order changes an organization's duty to conduct an independent investigation of any complaints or allegations. For most complaints, the investigatory process can be led by management. However, at least one agency, the city's Department of Homeless Services, has recommended that the board of directors should lead the investigatory process if a complaint is made against the chief executive officer, their direct reports, or an equivalent principal, and that, in those circumstances, the board hire an outside person to conduct the investigation and that the senior leader/alleged harasser be placed on administrative leave pending the outcome of the investigation.
Employers covered under this Order should be vigilant as city agencies begin amending existing contracts and future contracts to include this new requirement. To ensure compliance, covered organizations should consider revising their sexual harassment policies and implementing proper training to ensure that these complaints are being properly reported within the required timeframe. Executives should also advise their boards of directors or trustees of these new requirements. New York employers subject to this Order are encouraged to consult knowledgeable counsel for further guidance regarding employer obligations.
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