New York Issues Long-Awaited Draft Guidance On Workplace Sexual Harassment Policies and Training

New York Governor Andrew Cuomo signed into effect the 2019 budget bill, including a large package of legislation aimed at combating workplace sexual harassment, on April 12, 2018. Last week, the New York State Division of Human Rights and Department of Labor released long-awaited drafts of the State’s model sexual harassment policy, model complaint form, and model training program. 

The public, employers and employees are encouraged to provide comments on the documents on or before September 12, 2018. The mandate will come into force on October 9, 2018. In addition, New York City’s Commission on Human Rights has also taken steps this month to aid in ongoing efforts to combat workplace sexual harassment. The Commission has created a poster that all New York City employers must post in both English and Spanish beginning on September 6, 2018. The Commission has also drafted a new factsheet that must be distributed to all new hires beginning on this same date. An employer may include the factsheet in its handbook as well to satisfy this distribution requirement, provided the handbook is distributed to all new hires on their first day of employment. 

New York’s Model Sexual Harassment Policy 

Pursuant to Section 201-g of the New York Labor Law, every employer in the State of New York is required to adopt a sexual harassment prevention policy. The Department of Labor and the Division of Human Rights have established a model sexual harassment prevention policy for employers to adopt; otherwise, employers must adopt their own policy that meets or exceeds the minimum standards of the model policy. The policy must be provided in writing to each employee and at a minimum must: 

• prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights; 
• 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 complaint form; 
• include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties; 
• 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. 

While there is no requirement that employers obtain a signed acknowledgement from their employees, employers should seek to do so to verify that all employees have received a copy of the policy in writing. 

New York’s Model Sexual Harassment Prevention Training 

Additionally under Section 201-g of the Labor Law, every employer in New York is now required to provide all employees with sexual harassment prevention training, regardless of whether the employee works part-time or full-time, or whether the employee simply works for the employer for just one day in New York. New York State requires training to be “interactive,” meaning that it 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. 

The Department of Labor and Division of Human Rights have developed a model training program for employers, but if an employer chooses to adopt his or her own program, the following minimum standards must be met: 

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

All employees must complete the model training, or a comparable training meeting the minimum standards, by January 1, 2019. For new employees, sexual harassment training must be completed within 30 calendar days of starting employment. All employee training must also be renewed on an annual basis. 

The training model established by the Department of Labor and Division of Human Rights is a generic, broadly applicable model. Thus, it should be adapted to meet the specific needs of each workplace. Due to the unique nature of each work environment, this model should be appropriately modified to reflect the work of the organization, including for example, industry specific scenarios and employment-related case studies. Dechert is available to assist New York-based employers in complying with the new guidance and in implementing updated policies and procedures appropriate to their workplaces.