As previously noted, all employers in New York State will, among other things, be required to adopt and distribute a new anti-sexual harassment prevention policy by October 9, 2018, and implement annual sexual harassment prevention training for all New York employees.

The New York State Department of Labor (“DOL”), in consultation with the New York State Division of Human Rights (“SDHR”), recently released a draft guidance relating to New York State’s anti-sexual harassment laws.

The draft guidance includes the following:

(1) Combating Sexual Harassment: Frequently Asked Questions (“FAQ”)

(2) Minimum Standards for Sexual Harassment Prevention Training

(3) Minimum Standards for Sexual Harassment Prevention Policies

(4) A Model Sexual Harassment Policy for All Employers in New York State

(5) A Model Sexual Harassment Prevention Training

(6) A Model Internal Complaint Form for Reporting Sexual Harassment

The draft guidance is open for public comment through September 12, 2018. Employers wishing to submit comments regarding the draft guidance should contact Phillips Lytle.

Following this comment period, New York State will consider revisions and finalize the related guidance. Once the requirements are finalized, employers will need to adopt and use the New York State model policy and training program, or develop and use their own policy and training materials, which equal or exceed the minimum standards established by the DOL and SDHR.

Key Points

Employers must implement new anti-sexual harassment policies by October 9, 2018. The draft model anti-sexual harassment policy provides, among other things, that:

  •  The policy “applies to all employees, applicants for employment, interns, whether paid or unpaid, contractors and persons conducting business with” the employer;
  •  An investigation “should be completed within 30 days” after a complaint; and
  •  The policy “must be posted prominently in all work locations and be provided to employees upon hiring.”

In addition, according to the draft guidance:

  •  All employees must receive training, even if someone works for the employer, or in New York State, for just one day;
  •  All existing employees must complete the model training or a comparable training that meets the minimum standards by January 1, 2019. This requirement is a surprise, as the January 1, 2019 deadline is not found in the underlying legislation;
  •  All new employees should complete sexual harassment prevention training within 30 calendar days of their start date; and
  •  All employees must complete an additional training at least once per year. The annual training “may be based on calendar year, anniversary of each employee’s start date or any other date the employer chooses.”

What Should Employers Do Now?

New York employers should work with experienced counsel to review their sexual harassment policies and training programs to ensure that they meet the minimum standards set forth in the draft guidance. Phillips Lytle will continue to monitor developments in this area, including the implementation of final FAQs, the model policy and training materials.

Additional Assistance

If you require assistance drafting or revising your sexual harassment policy, completing sexual harassment training or any other labor and employment matter, please contact one of the attorneys on our Labor & Employment Practice Team.