New York State Releases Final Sexual Harassment Training and Policy

As we previously reported, New York State launched the Combating Sexual Harassment in the Workplace website in August 2018 to host resources for employers and employees about the new legal obligations arising from the New York State Budget. The website originally contained draft model sexual harassment prevention training and policy materials, but New York State has just issued the final versions of the documents, which are now publicly available through the website.  In addition, the website contains finalized FAQs and additional guidance on the new laws, including an “Employer Toolkit”, which provides employers with “step-by-step guidance” to implement the required policy and training program.

The final documents come only several days in advance of the October 9, 2018 deadline by which all New York State employers must adopt written sexual harassment policies and begin to implement annual sexual harassment training for employees.

Model Sexual Harassment Prevention Policy

By the October 9, 2018 deadline, New York employers must adopt written sexual harassment policies that meet the new legal requirements under the New York State Budget.  Employers have a choice in either adopting the State’s model policy and complaint form or implementing their own policy and complaint form, which must meet or exceed the minimum standards set forth by the new law.  Notably, all employees must be given a copy of the policy and it is suggested that the policy should be written in a language spoken by the employees.

To aid employers that would like to craft their own policies, the State issued guidance outlining the minimum standards to which the policy must adhere.  Specifically, the policy 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 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 reference to 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.

As noted above, an employer that adopts their own policy must provide an overview of their investigative procedures within their policy.  The final FAQs note that an employer need not adopt the investigative procedures set forth in the State model policy as long as the procedures meet the minimum standards listed above.  Moreover, a complaint form is not required to be included in the policy itself, but employees must be notified where the form may be found.

Notably, the final FAQs also state that employers must provide employees with a copy of the policy in writing or electronically.  If the policy is made available to employees electronically, employees must be able to print a copy for their records.

Model Sexual Harassment Prevention Training

Starting on October 9, 2018, the New York State Budget also requires employers to provide all employees with sexual harassment training on an annual basis. While the draft materials previously indicated that all employees must complete the first round of training by January 1, 2019, the final State guidance extends that deadline to October 9, 2019.  Moreover, the final materials relaxed the training requirement for new employees.  Specifically, the draft guidance stated that new employees must complete their sexual harassment training within 30 calendar days of their start date.  Now, the final guidance requires new employees to receive training “as soon as possible” after their start date.

According to the final FAQs, employees who only “work[] a portion of their time in New York State, even if they’re based in another state” must also receive annual training.  This requirement is overall less burdensome than the original draft FAQs, which provided that any employee must receive training even if “someone just works for one day for the employer, or if someone works for just one day in NY.”

To comply with the new law, employers must either adopt the State’s model training slides, script, and/or case studies or implement live training or interactive online/video training that meets or exceeds the minimum standards set forth by the new law. Specifically, at a minimum, 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; and
• Include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

As denoted by the final FAQs, employers crafting their own training policy do not need to include the sections of the model training that are “not expressly required in the law[,]” but covering the information is still “strongly recommended.”

According to the State guidance, employers should provide employees with training in the language spoken by their employees.  State-issued Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish, and Haitian-Creole versions of the final training materials are forthcoming.

Some additional significant changes that the State made to the draft training documents and related training FAQs include:

• The final FAQs provide that there is no minimum number of hours an employer must spend training its employees.
• The final FAQs make clear that while there is no duty to train third-party vendors, contractors, or other non-employees who provide services to the employer in the workplace (either on a one-time or regular basis), the State still encourages employers “to provide the policy and training to anyone providing services in the workplace.”
• The final FAQs clearly state that employers must make all of their employees aware of the additional requirements for those in managerial/supervisory roles.
• Employers are permitted to “take appropriate administrative remedies” when faced with an employee who fails to complete the training.
• The final FAQs further elaborate upon the meaning of “interactive training” by stating that merely watching a training video or reading a document, with no feedback mechanism or interaction, is not “interactive.” Instead, the guidance provides the following examples of interactive trainings:
  • If the training is web-based, it has questions at the end of a section and the employee must select the right answer;
  • If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner;
  • In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions; or
  • Web-based or in-person trainings that provide a feedback survey for employees to turn in after they have completed the training.
• While a live trainer is not required under the New York State Budget, the final State guidance emphasizes bringing in a live trainer is “a best practice for effective and engaging trainings[.]”

The website also provides additional clarifying information about laws regarding mandatory arbitration and nondisclosure provisions.

Concluding Employer Considerations

The October 9, 2018 deadline is quickly approaching and employers should take immediate action to ensure that their sexual harassment policies are in compliance with the new legal obligations or alternatively choose to adopt the State’s model policy.  Further, although the first training deadline is not until October 9, 2019, employers should begin deciding how they will fulfill their training obligations.  Employers should particularly consider whether to retain counsel to serve as live trainers for their workforces to ensure compliance with the new training requirement.

Further, as previously reported, New York City employers must also comply with the new Stop Sexual Harassment in NYC Act, which imposes its own set of specific training requirements for employers with 15 or more employees beginning on April 1, 2019.  The New York City Commission on Human Rights is in the process of creating an online module that employers may use at no charge to comply with the new law, but it is unclear when this module will be ready.  Employers should consult with counsel to ensure compliance with both laws.