New York State Releases Final Model Sexual Harassment Policy and Training

October 03, 2018

By Marc Bernstein, Kenneth W. Gage, Brian M. Hayes, Emily R. Pidot & Patrick W. Shea

As a follow-up to our Client Alert in August regarding New York State’s recently enacted Sexual Harassment Law, the final guidance and model sexual harassment policy, complaint form, and training materials are now publicly available. The law takes effect on October 9, 2018, so we strongly encourage employers to review and revise their anti-harassment policies, to the extent they have not done so already, to ensure they conform to the law’s minimum requirements.

The key takeaways are:

Policy Requirements: Every employer in the State, regardless of size, must adopt a policy that meets or exceeds the following minimum standards by October 9, 2018:
Prohibit sexual harassment consistent with guidance issued by the New York Department of Labor in consultation with the New York State 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.
Policy Distribution: Employers must distribute a sexual harassment policy that meets or exceeds the minimum standards to employees in writing or electronically by October 9, 2018. To the extent the policy is made available electronically, employees must have the capability of printing a copy for their reference.
Complaint Form: The complaint form does not need to be included with the sexual harassment policy, but employers should make clear to employees where it may be located (e.g., on the company’s employee intranet). A word version of the model complaint form is available here.
Training: Under the State law, employees’ first annual training must be completed by October 9, 2019 (Note: This is a change from the draft guidance previously released, which indicated that training needed to be completed by January 1, 2019).
Note that, under New York City law, employers with 15 or more employees in the city have one year from April 2019 to implement training that meets the standards of the New York City law. The City has not released its model training at this time, but employers are encouraged to periodically check the City website for further information and developments.
The State law requires “interactive training,” meaning that merely providing a video or reading materials to employees without live contact or the ability to provide feedback is not sufficient. However, a live trainer is not required. According to the State’s guidance, the following examples are measures that employers may consider adopting to satisfy the law’s “interactive training requirement”:
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;
Web-based or in-person trainings that provide a feedback survey for employees to turn in after they have completed the training.
Employers that choose to retain a third-party vendor to administer the training should ensure that the training meets the State’s minimum standards, including the “interactive” element.
Training Workshops: New York State will be offering workshops and webinars to familiarize employers with the new law and their obligations. The training schedule is available here.
Additional Information: Employers may review the State’s “Combating Sexual Harassment in the Workplace” website, which contains final versions of the model policy, complaint form, and training, in addition to FAQs.