New York Releases Guidance on New Sexual Harassment Laws
As discussed in a prior blog, the State of New York passed anti-sexual harassment legislation earlier this year that expanded coverage of the non-discrimination law to non-employees (e.g., contractors, vendors, consultants) and prohibited things such as mandatory arbitration of sexual harassment claims and non-disclosure provisions in settlement agreements for sexual harassment claims.
Perhaps the largest effect of the new law is the requirement that employers provide annual sexual harassment prevention training and an accompanying policy. Effective October 9, 2018, all employers in New York will be required to provide annual sexual harassment prevention training to all employees and develop a sexual harassment policy. This week, the State Division of Human Rights (SDHR) released guidance explaining how to implement these requirements.
Mandatory Sexual Harassment Policy
Employers can either adopt the model policy provided by SDHR or draft one that satisfies the following eight minimum standards:
- 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.
All employees must be provided a copy of the policy, and SDHR’s guidance advises that it should be provided to employees in the language they speak.
For employers who choose not to draft their own policy, SDHR provides a draft model policy available here. This draft policy is still subject to comments and revision, which are due by September 12, 2018. The final model policy will presumably be posted prior to the October 9th effective date. The SDHR also posted a draft model complaint form, which is a required component of the policy.
Mandatory Sexual Harassment Prevention Training
In addition to requiring employers to adopt a sexual harassment policy, they also must provide annual sexual harassment prevention training. The first training must be completed by January 1, 2019, and the annual trainings thereafter can be based on the calendar year, employee's anniversary year, or any other cycle the employer chooses according to the SDHR's FAQ section. New employees must complete training within 30 days of commencing employment.
As with the policy requirement, employers also have two options for satisfying the training requirement. They can either implement the SDHR's model training exercise or they can craft a training session of their own. If an employer chooses to craft its own training session, it must include the following six minimum standards:
- 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.
The guidance explains that the "interactive" requirement can be satisfied by making the training web-based that asks employees questions, by including questions from employees, by including a live training to answer questions, or by requiring feedback from employees about the training.
Employers can alternatively adopt and conduct the model training session created by SDHR. Note that New York City employers are subject to the City's new (and different) sexual harassment law, which, although not specifically addressed in this post, requires employers with 15 or more employees to conduct annual trainings effective Apr. 1, 2019.
Although the draft policies and training sessions are still in draft form subject to comments and revisions, employers should familiarize themselves with their new obligations under this law and prepare to meet the impending deadlines of having a sexual harassment policy in place by Oct. 9, 2018, and have conducted a sexual harassment prevention training session by Jan. 1, 2019.
Employers with policies and/or training already in place should have them reviewed for compliance with the minimum standards. Employers considering whether to adopt the SDHR’s model policies or draft their own should seek legal advice to determine which option is best for their business. Attorneys in Saul Ewing Arnstein and Lehr's Labor and Employment group can assist in drafting and reviewing policies, agreements, and trainings to ensure compliance with the new state and city laws.