New York State and New York City have now finalized the new requirements and measures previously announced in April 2018, intended to combat workplace sexual harassment. Following a lively comment period on the proposed materials, which we previously discussed in September, the final versions of these materials reflect numerous changes to the sexual harassment policy minimum standards, as well as extend the deadline to comply with the new sexual harassment training requirements.
New York State Materials
Under the final version of the regulations promulgated by the New York State Department of Labor (NYSDOL), employers are still permitted to adopt the model sexual harassment policy, or establish their own policy, so long as it meets or exceeds the minimum standards set forth in the statute. In addition to the requirements we previously reported in September, compliant sexual harassment policies are now required to include:
- An express prohibition of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights.
- 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.
- A complaint form to be used by employees to report incidents of sexual harassment.
- A procedure for the timely and confidential investigation of complaints that ensures all parties are afforded due process.
- A clear statement that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.
In addition to the model sexual harassment policy, the NYSDOL also has provided a model complaint form that the employer may choose to adopt. Employers are still permitted to draft and utilize their own complaint forms, provided that it:
- contains a statement informing the employee that New York law requires all employers to adopt a sexual harassment prevention policy that includes a complaint form to report alleged incidents of sexual harassment;
- contains a statement that the employee is encouraged to report any such sexual harassment via completion of the form;
- designates a specific point of contact (either a specific person or department within the organization) and provides sufficient contact information and instructions for submission;
- contains a statement notifying the employee that if he/she/they prefers to report an incident verbally, they can do so (and that the employer will then complete the form);
- requests contact information (including job titles) of the employee-complainant, the alleged harasser, and all managers/supervisors;
- requests that the employee identify the alleged abuser and relationship to employee-complainant;
- permits employee to provide a description of the sexual harassment, including the dates on which harassment occurred and/or whether it is continuing, and encourages submission of relevant documents or evidence, as well as identification of potential witnesses with relevant information; and
- requests a description from the employee as to how the harassment is affecting his/her/their work.
Additionally, the NYSDOL has now released minimum training standards, as well as a document entitled “Sexual Harassment Prevention Model Training.” Employers may utilize the model training materials, or may adopt their own training program, provided that it:
- is “interactive”;
- includes an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
- includes examples of conduct that would constitute unlawful sexual harassment;
- includes information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
- includes information concerning employees’ rights of redress and all available forums for adjudicating complaints;
- includes information addressing conduct by supervisors and any additional responsibilities for such supervisors; and
- is provided in the language that is spoken by their employees.
The FAQ’s contained in the NYSDOL webpage, explain the “interactive” component and essentially equate interaction with “employee participation.” Acceptable forms of “employee participation” include web-based questionnaires that the employee must correctly answer, guided question and answer sessions, and/or completion of a feedback survey. Notably, the final guidelines now include a requirement that the same training format be used across the organization for all employees. In other words, an employer cannot require live in-person training for staff and web-based training for managers; rather, the format should be uniform.
The draft materials previously contemplated that employers would be required to provide employees with training consistent with the above guidelines by January 1, 2019. However, as a result of feedback to the proposed materials (including logistical concerns and uncertainty as to what would be required in terms of content), the deadline to provide the required training has been extended through October 9, 2019. Thereafter, employers must provide sexual harassment training on an annual basis. For new employees, i.e. anyone hired after the initial training, the guidelines require that employees complete sexual harassment training “as quickly as possible.” This is a notable diversion from the August draft materials, which required that new employees be trained “within 30 days of commencing work.”
New York City Materials
In our September 2018 advisory, we discussed the resources published by the New York City Commission on Human Rights (NYCCHR) relating to compliance with the “Stop Sexual Harassment in NYC Act,” which was enacted on May 9, 2018, and additional sexual harassment training requirements, under Local Law 96 of 2018, which will be effective April 1, 2019. Employers will have one year from the effective date to implement sexual harassment training consistent with the new requirements. While the NYCCHR has indicated its intent to develop and share an online training program that will satisfy the City sexual harassment training requirements, no such program has been released at this time.
Conclusion
Given the comprehensive changes effectuated through these new guidelines, as well as the express intent of both the NYSDOL and NYCCHR to protect all employees, we anticipate that sexual harassment in the workplace will continue to be an area of intense review by administrative agencies and in the judicial arena. Gordon & Rees has an employment law team that can provide harassment (and discrimination) prevention training to businesses of all sizes, including bilingual trainers available to provide training to Spanish-speaking employees. We can also assist with bringing your current handbook/policies into compliance with all aspects of New York State and New York City law.