As part of the 2018-2019 New York State Budget, which was enacted on April 12, 2018 (see our previous client alert here), all New York State employers are required to adopt and distribute a written sexual harassment prevention policy, either by establishing their own policies or using the New York Department of Labor’s model policies by October 9, 2018. N.Y. Labor Law Section 201-g lists minimum standards that must be included in an employer’s sexual harassment prevention policy and training materials, and authorizes the Department of Labor, in consultation with the Division of Human Rights, to create a model sexual harassment prevention policy and model training program.
On October 1, 2018, the State issued several final guidance documents, including: sexual harassment prevention policy notice, model policy, model training materials, model complaint form for reporting sexual harassment, FAQs for employers, and Sexual Harassment Prevention Employer Toolkit.
Sexual Harassment Prevention Policy. Under the law, employers were required to adopt and distribute to all employees a sexual harassment prevention policy that meets or exceeds the minimum standards as set forth in N.Y. Labor Law Section 201-g by October 9, 2018. The FAQs for employers and the Employer Toolkit provide additional clarification. For example, while employers are not required to provide their sexual harassment policy to contractors, subcontractors, vendors, or consultants, employers are nevertheless encouraged to provide their policy and training to anyone providing services in the workplace. New employees should receive the sexual harassment prevention policy before commencing work. And while the new law does not require employers to obtain a signed acknowledgement of receipt of the anti-sexual harassment policy, the guidance provides that “employers are encouraged to keep a signed acknowledgment and to keep a copy of training records.”
Sexual Harassment Prevention Policy Notice. The state’s website indicates this “optional tool is one way to direct both employees and non-employees to your Sexual Harassment Prevention Policy and should be displayed in a highly visible place.” Thus, while employers are encouraged to post this notice in the workplace, it is optional. Nonetheless, we recommend that employers post this Notice.
Sexual Harassment Prevention Training. The final guidance materials provide employers with more time for employers to administer all New York employees sexual harassment prevention training. Specifically, the draft guidance materials required employers to provide the training by January 1, 2019. In the final guidance materials, however, employers have until October 9, 2019 to provide training to their employees and must conduct the training yearly thereafter. New York State’s delay of the training deadline is likely due to public comment and the uncertainty of New York City’s training requirements, since NYC, which has its own training deadline of April 2019, has not yet published any compliance guidance. Most employers in NYC will want to time their training to satisfy both the State’s and City’s requirements simultaneously.
Training must be completed by all exempt or non-exempt employees, part-time workers, seasonal workers, and temporary workers, and any individual that works a portion of his or her time in New York, even if based in another state. The anti-sexual harassment training should be “interactive” and the final guidance encourages employers to use a live trainer as a “best practice for effective and engaging trainings.” There is no minimum length of time for the required training, and while web-based interactive training is acceptable, showing a video or giving employees a document to comply with do not meet the minimum training requirements.
Training must also be completed on an annual basis. After an initial training, the training may be based on the calendar year, anniversary of each employee’s start date, or any other date the employer chooses. The final guidelines specify that employers should train new hires “as soon as possible”—a noticeable departure from the draft guidelines, which required new hires to be trained within 30 days of being hired. Additionally, if an employer has already administered training that does not meet all the new requirements, an employer need only provide supplemental training to ensure the minimum requirements are met.
The Bottom Line Be sure you have posted and distributed the model or your company’s sexual harassment prevention notice and policy. Start planning for your next Harassment Awareness Training sessions, since they will be required by October 9, 2019.