In our July edition of the Employer Update, we told you about recent legislation enacted by New York State and New York City to combat sexual harassment in the workplace in the wake of the #metoo movement. One element of that legislation is the requirement that New York State employers adopt, by October 9, 2018, written sexual harassment prevention policies and institute annual sexual harassment training for employees. In an effort to provide guidance to employers implementing these new legal requirements, New York State recently launched a website on Combating Sexual Harassment in the Workplace that includes, among other things, a draft model policy prohibiting sexual harassment in which reporting and investigation procedures are outlined, a model form for reporting complaints of sexual harassment and a model sexual harassment training program. The website will eventually include video training materials that have not yet been released.
The forms were developed by the New York State Department of Labor in consultation with the New York State Division of Human Rights. Any employer that does not adopt the model policy must adopt its own sexual harassment prevention policy that meets or exceeds certain minimum standards. Regardless, New York State considers the model policy a floor and invites employers to adopt more rigorous policies and to create higher standards for addressing sexual harassment in the workplace.
New York State’s Model Sexual Harassment Prevention Policy
The form of model sexual harassment prevention policy satisfies New York
State’s requirements that an employer’s policy must at least:
- 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.
Included among the new model forms provided by New York State is a complaint form for employers to use when collecting information from the complaining employee or individual that satisfies requirements of the standards imposed by the new legislation. The draft complaint form requests information on the nature of the complaint, the parties involved, potential witnesses, whether the individual has previously made complaints of harassment to the employer, whether the individual has filed a claim with a governmental agency or a state or federal lawsuit and whether or not the individual has hired an attorney.
The model sexual harassment prevention policy contemplates a comprehensive investigation of every allegation of sexual harassment. The policy suggests that the investigation of any complaint “should be completed within 30 days.” Additionally, the model policy provides proposed steps for any investigation of sexual harassment that includes “an immediate review” of the allegations and the completion of the complaint form either by the accuser, or if the accuser refuses, the employer. The employer is also encouraged to obtain and preserve “documents, emails or phone records” that may be relevant to the investigation as well as the review of such documents and interviews with all parties involved including relevant witnesses.
Each step in the investigatory process as well as the results of the investigation should be documented in a letter, memo or email. Finally, at the completion of theinvestigation, the employer should communicate the results of the investigation to the accused and accuser as well as inform the accuser of his or her right to file a complaint or other charge with the New York State Division of Human Rights, the EEOC and/or local law enforcement.
New York State’s Model Sexual Harassment
Under the recently enacted legislation, New York State employers will be required to provide their employees with sexual harassment prevention training within 30 days of employment and annually for existing employees. Initially, during the transition period, as the legislation goes into effect on October 9, 2018, the law requires that “all employees must complete the model training or a comparable training that meets the minimum standards by January 1, 2019.” Importantly, all employees, including temporary workers, must receive training even “if someone just works one day for the employer, or . . . works for just one day in” New York State. Thus, employers will need to keep precise and extensive records if their business includes employees who are temporary and/or work in more than one state.
- As with the sexual harassment policy requirements, the law requires employers to either adopt model-training materials, or adopt a policy that complies with the following minimum standards.
New York State employers’ sexual harassment prevention training must:
- 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 model training materials include, among other things, a trainer’s script, definitions of sexual harassment, descriptions of the circumstances under which sexual harassment can occur, definitions of sex stereotyping, unlawful retaliation and descriptions of the responsibilities of employers for reporting, investigating and addressing incidents and complaints of sexual harassment.
Advice for Employers
With the New York State sexual harassment prevention policy and training requirements scheduled to go into effect on October 9, 2018, employers should review their current sexual harassment prevention and training policies to ensure they comply with the new minimum standards. Smaller employers, who may not have previously devoted significant resources to compliance with employment laws, may be at a particular disadvantage. Such employers should carefully review the new sexual harassment prevention policy with respect to investigation procedures to ensure they are prepared to respond quickly to any allegations of sexual harassment in their workplaces. Additionally, employers may consider designating sexual harassment training staff or engage with outside vendors to begin the process of implementing the required training by the end of the year.