New York Employers Must Satisfy New Minimum Standards for Sexual Harassment Prevention

New York Employers Must Satisfy New Minimum Standards for Sexual Harassment Prevention

New York employers should be aware that a key compliance date is quickly approaching. As of October 9, 2018, employers must satisfy new minimum standards for sexual harassment prevention policies and training. The New York Department of Labor (NYDOL) has published draft materials, including a model sexual harassment prevention policy and model sexual harassment training guide, which should be finalized in the coming weeks.

Photo courtesy of Florian Giorgio (Unsplash.com)

Mandatory Sexual Harassment Policy

Under New York’s new sexual harassment law, which was enacted as part of the 2018 state budget, every employer in the New York State is required to adopt a sexual harassment prevention policy by October 9, 2018. An employer that does not adopt the model policy provided by the NYDOL must have a policy in place that (at minimum):

• prohibits sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
• provides examples of prohibited conduct that would constitute unlawful sexual harassment
• includes 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
• includes a complaint form
• includes a procedure for the timely and confidential investigation of complaints that ensures due process for all parties
• informs employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
• clearly states 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
• clearly states 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 must provide each employee with a copy of its policy in writing. The NYDOL also advises that employers should provide employees with the policy in the language that is spoken by their employees. The model policy will be available in English and Spanish.  In time, it is contemplated that versions in other languages will be made available to employers.

Mandatory Sexual Harassment Training

New York employers must also provide annual sexual harassment training to all employees, including part-time workers. Employers that decline to use the model training developed by the NYDOL must ensure that the training that they use meets or exceeds the following minimum standards. The training must:

• be interactive
• include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
• include examples of conduct that would constitute unlawful sexual harassment 
• include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment
• include information concerning employees’ rights of redress and all available forums for adjudicating complaints
• include information addressing conduct by supervisors and any additional responsibilities for such supervisors

The NYDOL has also published responses to several frequently asked questions (FAQs). The FAQs advise that employees must be trained at least once per year. In subsequent years, this may be based on the calendar year, the anniversary of each employee’s start date or any other date the employer chooses. For new employees, they must complete sexual harassment training within 30 calendar days of starting their job.

The FAQs also clarify what “interactive” means with respect to the required sexual harassment training. According to the NYDOL, the training requires some form of employee participation, meaning the training may:

• 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/or
• Require feedback from employees about the training and the materials presented.

Next Steps for NY Employers

For New York City employers, the new state-wide requirements are in addition to the obligations imposed under the Stop Sexual Harassment in NYC Act. Most notably, NYC employers must conduct annual sexual harassment training and display an anti-sexual harassment poster in common areas of the workplace. Under the NYC act, employers with 15 or more employees are required to conduct annual anti-sexual harassment training for all employees. Effective April 2019, employers will have one year to implement the training for all employees and must ensure all employees are trained annually thereafter. The NYC Human Rights Commission will develop and publish online training on its website that will satisfy this requirement in the coming months.

With new state and local regulations, the compliance burdens and liability risks are growing. To stay on top of all your obligations, we encourage you to contact one of Scarinci Hollenbeck’s experienced employment attorneys.

If you have any questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Gary Young, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.