New York State Issues Final Guidelines for Required Sexual Harassment Policy & Training – Extended Compliance Deadline

Earlier this year, legislators included measures in the state budget which now requires all employers – public or private and regardless of size, to adopt sexual harassment policies and conduct annual training programs to prevent sexual harassment in the workplace. On October 1, the New York State Department of Labor (DOL) and Division of Human Rights released their final guidance supporting these initiatives. While the legislation is effective October 9, 2018, at which point employers must have a written policy in place, the required training component has been extended, for most employers, to October 9, 2019.

Let’s break down each requirement:

1 – Employers are required to have a compliant sexual harassment policy in place by October 9, 2018.  Assuming most employers have a sexual harassment policy in place, those policies should be reviewed or new ones designed to ensure that they now include the following minimum standards to be compliant with New York state law:

1. Prohibit sexual harassment consistent with guidance issued by the DOL and Division of Human Rights;
2. Provide specific examples of prohibited conduct which constitutes unlawful sexual harassment;
3. Include information concerning all available remedies, federal and state provisions concerning 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, ensuring 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.

The state has provided both a model sexual harassment policy and a model complaint form that employers can adopt or use as a guide in creating their own policies. Policies can be provided in writing or electronically, as long as employees are able to print a copy at work for their own records.

The state also has a model poster notifying employees of the existence of their employer’s policy, though posting is not required.

2 – All employees in New York must complete sexual harassment prevention training that meets or exceeds the state minimum standards by no later than October 9, 2019.

This training requirement was originally announced as having to be completed by January 1, 2019, but was reconsidered and extended through the final rule. All full-time and part-time employees, seasonal employees and temporary employees must receive training by next October and annually thereafter; new employees must complete training as soon as possible, following their hire date.  Of course, waiting on either time frame is not recommended and puts the organization at risk.

To satisfy the training requirements, employers should look to the state’s  minimum standards for sexual harassment prevention training and are encouraged to adopt the state’s model training script and slides. Whether using the state’s templates or creating your own, training can be live or delivered online or through video, as long as the presentation is interactive and provides for immediate or timely feedback.  Note – all contractors doing business with New York state must submit an affirmation that they have a sexual harassment policy and that they have trained all of their employees beginning January 2019.

Rose & Kiernan, Inc. will continue to advise our clients of developments in this area along with recommendations and implementations for satisfying the training component. Clients are encouraged to review any resources associated with current Employment Practices Liability policies, and we remain available to speak about the importance of these lines of coverage in conjunction with the new state laws.

The state has also updated their website on this topic and has added frequently asked questions (FAQs) for both workers and employers.

If you have any questions for Rose & Kiernan, Inc. about New York State Workplace Harassment Laws, please contact us here or by calling (800) 242-4433.

This summary is provided to you for general informational purposes only, does not include references to other legal resources (e.g., supporting regulations, formal or informal opinions) unless specifically noted and should not be construed as legal advice or legal opinion on any specific facts or circumstances. Please seek qualified and appropriate counsel for further information and/or advice regarding the application of the topics discussed herein to your employee benefit plans.