As we previously reported, New York State’s new sexual harassment prevention policy and training requirements take effect today, October 9, 2018.

After issuing draft documents in August, the State released final guidance clarifying the new requirements just last week, giving employers little time to get their ducks in a row before the October 9 deadline.

Effective immediately, New York employers must: (i) implement the State’s model sexual harassment prevention policy, or create their own sexual harassment prevention policy that meets or exceeds certain minimum standards; (ii) make a complaint form available for employees to report sexual harassment; and (iii) conduct interactive sexual harassment prevention training on an annual basis, either using the state’s model training materials or another program that meets the training requirements.

Notable differences between the draft and final guidance

Under the new law, the State was required to publish a model harassment policy, complaint form, training program and other guidance by October 9, 2018. Coming in just under the wire, the final versions of these documents were released last week. While the final materials are largely consistent with the initial guidance, there are a number of noteworthy distinctions, including:

  • Mandatory training deadline extended: Employers now have until October 9, 2019 to complete their annual sexual harassment training. This is a welcome extension from the initial proposed January 1, 2019 deadline. Training must be completed for all employees every year.
  • No specific deadline to train new hires: Employers are not required to train new hires within 30 days, as proposed in the draft guidance. Instead, new hires must be trained “as soon as possible.”
  • No minimum training hours: The final FAQs clarify that there is no minimum length of time for the mandatory training program. Of course, the training program must be long enough to sufficiently cover the minimum standards.
  • No “zero tolerance” policy: While the draft model prevention policy provided for “zero-tolerance” against sexual harassment and retaliation, the final version eliminated this language. This change is consistent with EEOC’s position that the term “zero tolerance” may be misleading, in that it may inappropriately convey a one-size-fits-all approach.
  • No 30-day deadline to complete harassment investigation: The draft model policy suggested that sexual harassment investigations should be closed out within 30 days. The final policy does not set a time frame for completing such an investigation, but provides that an investigation must be “prompt and thorough, commenced immediately and completed as soon as possible.”
  • Sexual harassment policy “should” be posted: In addition to distributing the policy to employees, under the final guidance, employers “should” post the policy prominently in all work locations to the extent practicable.
  • Revised complaint form: The final model complaint form eliminates questions about whether an employee has filed an external complaint or hired legal counsel. Instead, the complaint form instructs: “If you have retained legal counsel and would like us to work with them, please provide their contact information.”

Takeaways

All New York employers – even those who recently updated their policies in anticipation of the October 9 deadline – should review their sexual harassment prevention policies for compliance with the newly-issued final guidance. New York employers should also schedule their annual prevention training sessions to occur before October 9, 2019. Employers in New York City would be well-advised to implement a training program that also meets the future requirements under City law, effective April 1, 2019.