Understanding This Month’s New York State Sexual Harassment Policy Deadline

sexual harassment policy

As you may have heard, earlier this year, both New York State and New York City passed laws intended to combat workplace sexual harassment.

On August 23, 2018, New York State released a draft of its (i) model sexual harassment policy, (ii) model complaint form for employees to report sexual harassment, (iii) FAQs regarding the new law, (iv) minimum standard guidelines, and (v) model training (all can be found here). All drafts were in proposed form and open for public comment until September 12, 2018.

While the New York State model policies and guidelines have not yet been released in their final form, and New York City has yet to release any particulars, employers must be prepared to meet an October 9, 2018 compliance deadline and a October 9, 2019 sexual harassment training deadline.

Written Sexual Harassment Policy Requirements

Effective October 9, 2018, New York State law requires that all employers either adopt New York State’s model sexual harassment policy or a policy that meets or exceeds the State’s model policy and minimum standards. At minimum, the policy must:

  • (i) prohibit sexual harassment consistent with guidance issued by the NYDOL;
  • (ii) provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  • (iii) 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;
  • (iv) include a complaint form, for which the state provides a model complaint form;
  • (v) include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  • (vi) inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  • (vii) 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
  • (viii) 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.

New York City has not yet released similar guidance or model policies. Nonetheless, in an effort to satisfy both laws and avoid having to issue a revised policy in 2019, employers should keep New York City law in mind when adopting or revising their anti-harassment policies. The recent New York City information sheet that is required to be distributed provides significant guidance.

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Employers must provide the sexual harassment policy in writing, but may do so electronically so long as employees are able to print and access the policy on a computer provided by the employer during work time.

Mandatory Annual Interactive Training Requirements and Deadlines

By October 9, 2019, New York State requires that all employers provide their employees with interactive training, comprised of either the State’s model training or a comparable training that meets or exceeds the State’s model policy and minimum standards. The training must:

  • (i) be interactive;
    • a. web-based training with questions asked of employees as part of the program;
    • b. the ability of employees to ask and have their questions answered during the training;
    • c. a live trainer made available during the session to answer questions; and/or
    • d. requiring employees to provide feedback about the training and materials presented.
  • (ii) include an explanation of sexual harassment consistent with guidance from the NYDOL;
  • (iii) include examples of conduct that would constitute unlawful sexual harassment;
  • (iv) include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
  • (v) include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

All employees must be trained at least once per year. After October 9, 2019, the training date may be based on the calendar year, the anniversary of each employee’s start date, or any other date the employer chooses. New employees must be trained within 30 calendar days following the commencement of employment. All employees, including part-time and temporary employees, must be provided the training. In addition, the State’s proposed guidance states that the trainings should be provided in the language spoken by the employees.

Effective April 1, 2019, the New York City law similarly requires an annual anti-sexual harassment training for all employees, but limits the requirement to employers with 15 or more employees. All new employees, whether part-time or full-time, who work 80 hours or more per year must receive the training 90 days after their initial hire, unless the employee receives the training within the same annual cycle from a prior employer. New York City is expected to develop and share an online interactive training model with employers. While the model training has not yet been released, many of New York City’s minimum standards strongly correlate with those of the State, and employers undertaking the New York State required training, who are cognizant of the New York City minimum standards that will likely exceed those of the State (e.g., required education on “bystander intervention”), should be able to satisfy both laws with one training program.

Conclusion

I’m sure you have heard that the deadline may be moved back. It’s a mistake to not take the offense with this and call our firm today or a qualified employment law counsel so that you are ready for the October 9th deadline.

The goal of that call is very simple: We can help you provide the policy in writing to your employees. We will also show you how to meet the requirement electronically. That requires that employees are able to print and access the policy on a computer provided by the employer during work time.

You will find that it is much easier to stay ahead of this rather than look back and second guess why you didn’t if a problem occurs.

Amanda Fugazy
Amanda Fugazy is a partner at Ellenoff, Grossman & Schole in New York City. She is the head of the firm’s labor and employment group, and has a focus on the restaurant and hospitality industry. Fugazy offers a variety of services to the industry, including working with her clients to ensure that they are in compliance with state and federal laws and regulations. She can be reached by phone at 212-370-1300, or by email at afugazy@egsllp.com