New York state just released draft guidance and models for employers to comply with the state’s new sexual harassment prevention policy and training requirements, which go into effect on October 9, 2018. The state is encouraging comments from the public, employers and employees through September 12, 2018, which can be submitted through the state’s website.

As we previously reported, in the FY2019 budget bill, New York state passed a number of measures targeting sexual harassment in the workplace, including mandatory sexual harassment prevention policy and training requirements. The new law requires the state to create a model policy, complaint form, training program and guidance, which it has now published in proposed form. These documents are subject to change before the October 9, 2018 deadline, leaving employers with a number of questions and little time to comply with the final requirements.

Proposed Model Training Program and Guidance

The state has published a draft Model Sexual Harassment Prevention Training Program, which currently includes a script for in-person training and a PowerPoint presentation. Employers must either utilize the model training program or use another “interactive” training program that satisfies the draft Minimum Standards for Sexual Harassment Prevention Training.

The state has also released draft FAQs, which contain some unexpected challenges for employers. For example, although the state law requires employers only to provide training “to all employees on an annual basis,” the draft FAQs state that all employees must receive training by January 1, 2019 – less than 90 days after the law goes into effect. The proposed January 1 deadline further complicates matters for New York City employers ,who will also need to comply with the training requirements mandated by the Stop Sexual Harassment in NYC Act, effective April 1, 2019. Employers who intended to wait until the spring to implement a training program that complies with both city and state requirements will need to change their plans and conduct the state-mandated training before the end of this year, if the January 1 deadline is not modified in the final guidance.

The draft FAQs also impose strict requirements for training new and transient workers, which were not included in the law. Specifically, the state has proposed that new employees must complete training within 30 days of hire, and that employers must train all employees who work in New York, even those who are employed for as little as one day. For many employers, particularly those with modern and flexible workforces, it will be difficult to comply with these proposed timing requirements. The state guidance also provides that “[e]mployers should provide employees with training in the language that is spoken by their employees,” but the model program is currently available in English only.

Proposed Sexual Harassment Policy and Complaint Form

The state has published a seven-page, single-spaced draft Sexual Harassment Policy for All Employers in New York State, and under the new law, New York employers must either adopt the state’s policy or implement a policy that meets or exceeds the state’s draft Minimum Standards for Sexual Harassment Prevention Policies. Under the draft Minimum Standards, the policy must:

  1. Prohibit sexual harassment consistent with state guidance;
  2. Provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  3. 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;
  4. Include a complaint form (see draft Complaint Form For Reporting Sexual Harassment);
  5. Include a procedure for the timely and confidential investigation of complaints that ensures 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’s model policy, however, goes beyond these requirements. As an example, the model policy provides that investigations “should be completed within 30 days,” while the minimum standards require only a procedure for a “timely” investigation. It is not entirely clear how the state will interpret the minimum standards in light of the model policy and whether the state will expect employers to incorporate any of the model’s specific procedures to meet those standards.

Takeaways

The draft models and guidance are not yet finalized and may be revised based on comments received by the state. Employers should consider how the proposed guidance may affect their business and submit comments as needed on or before September 12, 2018.

We will continue to monitor the state’s website and provide updates on any new guidance and the final models. In the meantime, employers should prepare to update their sexual harassment prevention policy and plan their training programs. Please contact your Baker McKenzie lawyer with any questions on compliance obligations or for help with conducting training programs or revising your existing policies.