Final Version of NY Sexual Harassment Prevention Policies Goes into Effect

Both New York State and New York City have enacted new legislation that targets sexual harassment in the workplace. The new legislation mandates anti-sexual harassment training, along with policies that go into effect either immediately or prior to the training. On Oct. 1, 2018, New York State issued its final model policy, model complaint form, and training script.

New York State employers must now either adopt these model policies and training program or establish policies and a training program that equal or meet the standards in these models. New York State’s model policies/programs (along with a model complaint form to report incidents of sexual harassment) can be found at https://www.ny.gov/combating-sexual-harassment-workplace/employers. The model forms and policies are provided in PDF printable formats.

To best protect your business interests and comply with the new law, you should immediately review these model policies and be sure that you adopt them (or create your own that equal or meet the same standards) and begin your anti-sexual harassment training sessions shortly.

Difference Between Draft and Final Requirements for Training

The new law requires employers to provide all employees with annual anti-sexual harassment training. Two keys differences between the draft and final requirements for training are as follows: (1) The deadline for complying with the training requirement has been extended from Jan. 1, 2019, to Oct. 9, 2019; and (2) new employees must be trained “as soon as possible” and not, as previously suggested, within 30 days of hire. Employers may choose to wait to commence training until April 1, 2019, when New York City’s anti-sexual harassment law goes into effect. New York State has helpfully provided a list of Frequently Asked Questions and Answers at https://www.ny.gov/combating-sexual-harassment-workplace/combating-sexual-harassment-frequently-asked-questions#for-employers .

New York State Model Policy and Complaint Form

Beginning on Oct. 9, 2018, employers were to have begun distributing an anti-sexual harassment prevention policy and a complaint form, models of which have been provided by New York State on its website. The model policy defines sexual harassment, provides examples of sexual harassment, states that retaliation for reporting a sexual harassment claim is unlawful, requires supervisors and managers who receive complaints to report such suspected harassment, and provides that all complaints or information about sexual harassment will be investigated.

The model complaint form, among other things, requires the complainant to set forth his or her supervisor’s information, the person who allegedly committed the harassment and their relationship to the complainant, the incident that occurred and how it is affecting the employee’s work, and the names of individuals who may have information about the incident.

You should remember that the adoption of the form—by itself—is not a defense to harassment charges and that you need to investigate the charges, adopt anti-sexual harassment policies, and have your employees adequately trained.

New York State has provided some additional guidance to employers regarding an anti-sexual harassment policy:

• The policy must be provided to employees either in writing or electronically;
• While the policy does not have to be provided to independent contractors, it is encouraged that employers do so because their sexual harassment claims are covered under the new law;
• The policy should be clear as to where employees may obtain the complaint form;
• Employers are encouraged to have employees acknowledge receipt of the policy and keep copies thereof; and
• New employees should receive a copy of the policy before starting work.

New York State Model Training Program

New York State provides a model video on its website (which can be downloaded or watched on YouTube), which employers can use as part of their interactive training program. However, the training program must be fully interactive. If you are using the videos to train your employees, you must also ask questions of your employees about the program, accommodate their questions and answer them, and obtain feedback from them about the training and the materials provided in order to comply with the law.

If you create your own training (as opposed to using New York State’s model), it must meet the following minimum standards:

• Be interactive;
• Explain sexual harassment consistent with the guidance provided by New York State;
• Include examples of conduct considered sexual harassment;
• Include the statutory provisions concerning sexual harassment and the remedies available to victims;
• Include information concerning the right of redress and the forums for adjudicating complaints; and
• Include information addressing supervisor conduct and any additional supervisor responsibilities.

New York State has provided additional guidance to employers regarding sexual harassment training:

• There is no specific time requirement for the length of the training;
• All workers (whether part time, seasonal, or temporary) must be trained while non-employees (volunteers, independent contractors, and vendors) need not be;
• Training must be done on an annual basis (which can be either the calendar year, the anniversary date of each employee’s start date, or any other date);
• Training time must be counted as regular work hours; and
• Training in which an individual only watches a video or reads a document—with no feedback interaction—is not interactive and does not comply with the law. For web-based training to be interactive, for example, the session may have questions at the end and the employee may have to select the right answer. For in-person training to be interactive, the presenter must ask the employees questions or permit them to ask questions and may provide the employees with a feedback survey of the training afterwards.

In short, employers should ensure that they have sufficient anti-sexual harassment policies and training now in place. Consult an attorney with any questions or concerns you may have and how you can best protect your interests while providing your employees with a safe and secure workplace.