United States: New York State Issues Guidance For Compliance With New Sexual Harassment Law

Last Updated: September 4 2018
Article by Shawn Butte and Amy J. Traub

Earlier this year, Gov. Cuomo signed into law the 2018-2019 New York State Budget, which included new requirements for both private and government employers intended to combat sexual harassment in the workplace.

As reported in our previous post, the new law mandates that starting October 9, 2018, all New York employers must adopt a sexual harassment prevention policy and provide sexual harassment prevention training to employees. Both the policy and training must meet or exceed minimum standards set by the New York State Department of Labor together with the New York State Division of Human of Rights (collectively hereinafter, "New York state" or "the state"). Employers must provide sexual harassment prevention training to all current employees by January 1, 2019. Additionally, employers who are state contractors must submit an affirmation to New York state confirming that they have distributed the requisite sexual harassment prevention policy and provided the necessary training.

Last week, New York state released draft guidance for employers to comply with these new requirements. Specifically, the state released 1) a model sexual harassment policy for employers, 2) a model complaint form for employees to report sexual harassment, 3) a model sexual harassment prevention training program and 4) FAQs for employers regarding the new law. Each of these documents, including the FAQs, is in proposed form and in a public comment period until September 12, 2018.

Below is a summary of the key provisions of the model sexual harassment prevention training guide and model sexual harassment prevention policy released by New York state.

Model Sexual Harassment Prevention Training Guide

To assist employers with establishing a sexual harassment prevention policy, New York state has released a 24-page model training guide. The guide includes instructions for employers, a minimum training standards checklist, a script for providing employees with sexual harassment prevention training and a section of sexual harassment case studies, which includes hypothetical sexual harassment scenarios.

The introductory pages of the guide explain that an employer's sexual harassment prevention training must be interactive and include as many of the following four elements as possible: 1) be web-based, with questions asked of employees as part of the program, 2) accommodate questions asked by employees, 3) include a live trainer made available during the session to answer questions and 4) require feedback from employees about the training and the materials presented.

Employers are not required to adopt New York's model training guide. Employers that decide to not use the guide must tailor their current training to meet or exceed the state's minimum standards.

Regardless of whether an employer adopts New York state's model training guide, all employers must provide employees with sexual harassment prevention training that meets the state's minimum standards by January 1, 2019. Employers will then be required to provide this training at least once per year moving forward. Employees who start employment after January 1, 2019, must receive sexual harassment prevention training within 30 calendar days of hire.

Employers are required to provide sexual harassment prevention training to all employees, including temporary and part-time workers. Further, employers are permitted to take "appropriate administrative remedies" if an employee fails to complete sexual harassment prevention training despite the employer's best efforts to provide such training.

Model Sexual Harassment Prevention Policy

In addition to a model training guide, New York state has also released a model sexual harassment prevention policy to be distributed by employers. The model policy provides employees with, among other things, a comprehensive definition of sexual harassment, examples of sexual harassment, and information regarding reporting sexual harassment both internally and to the New York State Division of Human Rights, the Equal Employment Opportunity Commission, and a local police department. The model policy is intended to be accompanied by a complaint form for employees to report sexual harassment. New York state's model complaint form can be found here.

Similar to the model training, employers may either adopt New York state's model policy or modify their existing policy to meet or exceed the state's minimum standards.

Regardless of whether an employer uses New York state's model policy or revises a current policy, the employer's sexual harassment prevention policy must be provided to employees in writing, but may also be provided electronically as long as employees are able to access and print the policy on a computer in the workplace. Notably, employers are encouraged to obtain a signed acknowledgment of the policy but are not required to do so.

The Bottom Line

Employers will need to carefully review, with counsel, the guidance released by New York state to determine how to comply with the minimum standards for conducting sexual harassment prevention training and implementing a sexual harassment prevention policy. While the model training guide and policy issued by New York state may be revised following the end of the comment period on September 12, 2018, employers should use this opportunity to review their current policies and assess the best way to announce these changes to their employees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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