UPDATE – On Oct. 1, 2018, the state of New York released final guidance on the anti-sexual harassment measures that were passed in the 2018-2019 New York state budget. Perhaps the most important (and welcomed) change in the guidance is that employers now have until Oct. 9, 2019, to provide employees with the mandated training.

Other notable changes include:

Policy

  • Removes “zero tolerance policy” language.
  • Adds in language about other protected classes and a prohibition against harassment related to them.
  • Softens the “confidential investigation” language.
  • Expands the definition of sexual harassment and addresses sex stereotyping.
  • Specifically states that the prohibition against retaliation does not protect individuals who intentionally make false reports of harassment.
  • Removes the 30-day time limit for investigations to be completed.
  • Recognizes the investigation process may vary from case to case.
  • Instructs the accused to refrain from communicating with the complainant.

Training

  • A PowerPoint version has been added with additional talking points.
  • Several case studies have been added.
  • Clarifies that the training may be presented individually or in groups and in person or via phone, online, webinar or recorded presentation.
  • Clarifies that providing answers to any questions during a training in a timely manner is sufficient – i.e., employers need not use a live trainer.
  • Suggests training should be given in the same delivery method for all employees.
  • Removes the requirement that new employees be trained within 30 days, and instead mandates that they be trained “as quickly as possible.”
  • Recommends certain actions if an employee begins sharing a personal story during a training.
  • Removes “zero tolerance policy” language.
  • Reorganizes the definition of sexual harassment.
  • Suggests that employees document harassment at the time it occurs if not ready to make a complaint at that time.

Complaint Form

  • Removes language mandating that the employer follow its policy regarding investigations.
  • Removes the optional question regarding whether the employee has filed a complaint with a government agency.
  • Revises the portion asking whether the employee has an attorney with whom he or she would like the employer to speak.

FAQs

  • Announces that the state will provide workshops and webinars – dates TBD.
  • Announces policies and trainings will be published to the website in the following languages as quickly as possible: Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole, and that other languages may be added.
  • Expands guidance for temporary employees and third-party vendors.
  • Clarifies training requirements, including that simply watching a video with no feedback mechanism or other interaction is insufficient.
  • Clarifies that the 21-day period related to nondisclosure agreements cannot be waived.

It is likely that employers will have many more questions while implementing these policies, including how much of the model training/policy is necessary to incorporate in order to have a valid training/policy under the law.