United States: New York And NYC Release Mandatory Anti-Sexual Harassment Materials

Last Updated: September 20 2018
Article by Joshua Zuckerberg and LaKeisha M.A. Caton

As we reported in our May 16th legal update, New York City (NYC) and New York State (NYS) have each passed comprehensive laws targeting sexual harassment in the workplace. NYC recently issued an anti-sexual harassment poster and fact sheet which must be displayed and distributed by all employers in NYC as detailed herein. Furthermore, NYS released: (i) a model sexual harassment policy and complaint form; (ii) a model sexual harassment training program; (iii) minimum standards for sexual harassment prevention policies and trainings; and (iv) a list of frequently asked questions (FAQs) to ensure employer's compliance with its new law. The materials are currently in draft form but we expect NYS to issue final guidance shortly.

Beginning on October 9, 2018, every employer in NYS regardless of size must adopt the finalized version of the model sexual harassment prevention policy and training or implement a policy and training that meets or exceeds the standards promulgated by NYS, and provide employees with sexual harassment prevention training in the employee's spoken language on an annual basis. All current employees must complete their sexual harassment training by January 1, 2019, and then repeat such training at least once per year. All new employees must complete their sexual harassment prevention training within 30 days of their start date and then once per year thereafter.

Pryor Cashman's Labor + Employment Group is available to assist clients in implementing these mandated trainings and policies.

New York City Anti-Sexual Harassment Poster and Fact Sheet

The New York City Commission on Human Rights (the "Commission") has released an anti-sexual harassment poster in English (as found here) and Spanish (see here) which must be displayed in a conspicuous location by all NYC employers in both languages effective immediately. The Commission has also released an informational fact sheet (see here) that all NYC employers are now required to distribute to new employees at the time of hire.

Sexual Harassment Policy for New York State Employers

The NYS model sexual harassment policy contains several notable provisions, including that:

  • in addition to employees, applicants for employment, paid and unpaid interns, independent contractors and persons conducting business with the employer are protected from sexual harassment;
  • in addition to the physical workplace itself, sexual harassment can occur while employees are traveling for business or at employer-sponsored events or parties. Furthermore, calls, texts, emails, and social media usage by employees can constitute unlawful workplace harassment, even if they occur away from the workplace premises or not during work hours;
  • managers and supervisors are required to report any complaint that they receive, or any harassment that they observe;
  • employers must conduct a prompt, thorough and confidential investigation that ensures due process for all parties, whenever management receives a complaint about sexual harassment, or otherwise knows of possible sexual harassment occurring;
  • investigations should be completed within 30 days and will be confidential to the extent possible; and
  • the complainant is to be promptly notified of the final determination and informed of his/her right to file an external complaint or charge.

In addition to the model sexual harassment policy, NYS has also provided a model complaint form for employees to report alleged incidents of sexual harassment, which must be included with the policy.

Minimum Standards for the Policy

If an employer decides not to adopt the model policy, the sexual harassment prevention policy it does implement must at a minimum:

  • prohibit sexual harassment;
  • provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  • include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
  • include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  • include a complaint form;
  • inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  • clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
  • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

Employers are required to provide each employee with a copy of its policy in writing, in a language that is spoken by the employee.

Model Sexual Harassment Training for New York State Employers

The model sexual harassment prevention training created by NYS provides that programs should include as many of the following elements as possible: be web-based with questions asked of employees as part of the program; accommodate questions asked by employees; include a live trainer made available during the session to answer questions; and require feedback from employees about the training and the materials presented. Furthermore, the draft script for training programs largely tracks the State's model sexual harassment prevention policy, including noting that harassment can occur whenever and wherever employees are fulfilling their work responsibilities, including in-the-field and at employer-sponsored events, and that supervisors are required to report any harassment that is reported to them or which they observe and are responsible for any harassment or discrimination that they should have known of with reasonable care and attention to the workplace for which they are responsible.

Minimum Standards for Training

Like the model sexual harassment policy, employers have the option of adopting the model training developed by NYS, or implementing training that, at a minimum, includes:

  • some form of employee participation;
  • a sufficient explanation of sexual harassment;
  • examples of conduct that would constitute unlawful sexual harassment;
  • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
  • information concerning employees' rights of redress and all available forums for adjudicating complaints; and
  • information addressing conduct by supervisors and any additional responsibilities for such supervisors.

Recommendations

Employers in NYC should make sure that they have posted in both English and Spanish the anti-sexual harassment posters provided by the Commission, and that they distribute the informational fact sheet released by the Commission to all of their new hires going forward. NYS employers should also ensure that their employee manuals and policies are in compliance with NYS' guidelines, and prepare to conduct annual anti-harassment and discrimination trainings that also conform with NYS' standards.

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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