Key Notes:

  • Employers with operations in New York should review the new materials published by the New York State Department of Labor to ensure they establish compliant sexual harassment prevention polices.
  • New York employers should also review these materials and consider how best to comply with the interactive sexual harassment prevention training requirement.

In April 2018, New York Governor Andrew Cuomo signed into law a host of measures concerning sexual harassment in the workplace. Among key provisions, the law requires employers to establish sexual harassment prevention policies and provide interactive sexual harassment prevention training to all of their employees who perform work in New York. The law contemplates that the New York State Department of Labor (NYDOL) would publish guidance as well as a model sexual harassment prevention policy and model training for use by employers seeking to comply with the new law.

Although the first deadline to comply with the new law is this week, within the past week the NYDOL finalized the guidance and materials necessary for employers to comply with the law. Specifically, the NYDOL published a model sexual harassment prevention policy, model complaint form and model prevention training program. The NYDOL also published minimum policy and training requirements as well as a poster and toolkit to assist employers with compliance.

Effective October 9, 2018, New York employers are required to establish a written sexual harassment prevention policy and make it available to employees in writing or electronically. In addition, new employees must be provided with access to the employer’s sexual harassment prevention policy before they start work. Further, employers must provide the policy in a language spoken by their employees.

Employers may comply with the policy requirement by adopting the model sexual harassment prevention policy published by the NYDOL. Alternatively, New York employers may comply with the policy requirement by adopting their own policy that meets the requirements of the law and is consistent with guidance issued by the state. According to the minimum requirements, employers who choose to create their own policies must:

  1. prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  2. provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  3. 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;
  4. include a complaint form;
  5. include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  6. inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  7. 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
  8. 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.

See Minimum Policy Requirements. Employers should take immediate steps to review and update their policies.

New York employers have until October 9, 2019, to provide all of their existing employees with interactive sexual harassment prevention training. Employers should also work to provide new employees with compliant interactive training as soon as possible. Like the policy requirement, employers must provide the interactive training in a language spoken by their employees. Employers may comply with the interactive training requirement by establishing a model sexual harassment prevention training program that meets or exceeds the standards provided in the model training. According to the recently published guidance, the training must:

  1. be interactive;
  2. include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  3. include examples of conduct that would constitute unlawful sexual harassment;
  4. include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
  5. include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
  6. include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

See Minimum Training Requirements. Interactive training can be provided in person, through a web-based program or by other means. However, it is critical that the training incorporate questions, hypotheticals or some opportunity for feedback in order to meet the interactive requirement. Once employers have met this requirement, they must continue to provide their employees with prevention training annually. Employers should review the new guidance and consider how to implement the training requirement in a manner that meets the needs of their workforce.