As we previously reported, New York City and New York State (NYS) enacted laws in 2018 concerning workplace sexual harassment. Effective Oct. 9, 2018, New York State employers will be required to provide annual anti-sexual harassment training to all employees, adopt a sexual harassment prevention policy and provide to employees a complaint form for reporting sexual harassment. In light of these requirements, the NYS Department of Labor in consultation with the Division of Human Rights released the following documents: Model Sexual Harassment Prevention Training (Model Training Guide), Model Sexual Harassment Prevention Policy (Model Policy), Model Complaint Form for Reporting Sexual Harassment and Frequently Asked Questions (FAQs).
As of the time of this publication, these newly released documents are in draft form, and it is possible that these documents will be revised following the public comment period, which closed on Sept. 12, 2018. The website currently contains the following notice: “The state has received hundreds of very constructive and substantive comments from a wide range of individuals, advocates, industries, worker groups, businesses and business organizations. The comments are being reviewed and necessary revisions being considered, with finalized documents expected to be released in the near future.”
It is unclear when NYS intends to release final form documents, but we will continue to keep a close eye on further developments and provide additional updates. Employers are not required to adopt the Model Policy and Model Training Guide and may implement their own policy and training program as long as they meet the minimum standards prescribed by the state.
Given that the state has not informed the public as to when final documents will be released and the effective date is approaching, we recommend that employers implement compliant sexual harassment policies and trainings or review their existing policies and trainings to ensure compliance. By Oct. 9, 2018, employers’ policies and training programs must meet the minimum standards set forth below.
Anti-Sexual Harassment Prevention Training
Employers must implement a sexual harassment prevention training program for all NYS-based employees. The current draft FAQs provide that all employees must complete sexual harassment prevention training before Jan. 1, 2019, and all new employees must complete training within 30 calendar days of their start date.
NYS law requires that an employer’s model sexual harassment prevention training program be “interactive” and include at a minimum:
- An explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
- Examples of conduct that would constitute unlawful sexual harassment;
- Information about 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.
While the law does not explicitly define “interactive,” the Model Training Guide states that “interactive” means “it requires some level of participation by those being trained.”
The Model Training Guide also states that “the training 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
- Require feedback from employees about the training and the materials presented.”
Sexual Harassment Prevention Policy
An employer that does not adopt the state’s Model Policy must ensure that the policy it adopts meets the following minimum standards and is provided to all employees in writing:
- Explicitly state that sexual harassment is prohibited in the workplace, and provide examples of conduct that would constitute sexual harassment;
- Inform employees of applicable federal and state laws and the remedies available to sexual harassment victims, and contain a disclosure that other local laws may apply;
- Provide a standard complaint form attached to the policy;
- Include the employer’s procedure for a timely and confidential investigation of complaints;
- State employees’ rights of redress, including all available forums available to the employee for adjudicating sexual harassment complaints both administratively and judicially;
- State that sexual harassment is a form of employee misconduct that can result in adverse employment consequences for the harasser and any supervisor or manager who knowingly allows such behavior to continue; and
- State that retaliation against
individuals who complain of sexual harassment or who testify or
assist in any proceeding is unlawful.
The state’s FAQs note that employers may provide the policy electronically, “but workers must be able to access the employer’s policy on a computer provided by the employer during work time and be able to print a copy for their records.” In addition, the state’s Model Policy notes that employers should provide employees with the policy in the language that is spoken by their employees. Further, while not required by NYS law, the FAQs encourage employers to obtain acknowledgment forms signed by employees, which we think is a best practice that should be adopted in connection with distribution of an employer’s new policy. An electronic acknowledgment form is sufficient.
We will continue to monitor the state’s website for new developments and provide updates. With the effective date of the NYS law fast approaching, employers should not hesitate to speak with counsel to ensure their training programs and policies comply with the new requirements. For questions or concerns regarding harassment prevention policies, training and compliance, please contact a member of Kramer Levin’s Employment Law Department.
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.