An updated New York State Sexual Harassment Prevention Model Policy (the “Model Policy”) is out. On April 11, 2023, Governor Kathy Hochul announced that the New York State Department of Labor (“NYSDOL”) finalized updates to the Model Policy, a template document New York State provides to help employers comply with state law. The updated guidance (the result of a collaboration between the NYSDOL and the New York State Division of Human Rights), addresses, among other topics, remote workers, gender discrimination, and retaliation–and provides a new interactive training video, a slide deck and other resources to help employers (and employees) comply with the State’s mandatory training requirements.
Though New York State employers aren’t required to use to the Model Policy (see more below), they may want to review their sexual harassment prevention policies and training in light of the updates and work with counsel to ensure their policies and training are still in compliance.
Required sexual harassment prevention policies and training for New York State employers
All employers in New York State, regardless of size, must adopt a written sexual harassment prevention policy and provide sexual harassment prevention training to employees annually.
- To meet the written policy requirement, employers can either implement the State’s model sexual harassment prevention policy, or create their own written sexual harassment prevention policy that meets or exceeds the minimum standards set forth in Section 201-g of the New York Labor Law.
- To meet the training requirement, employees who work or will work in New York State need to be trained annually–including individuals who work only a portion of their time in New York State, even if they are based in another state.
New York City-based employers take note: according to New York State’s FAQs on Combating Sexual Harassment in the Workplace, NYC-based employers can comply with both the New York State and New York City’s training requirements by using the online training provided by the New York City Commission on Human Rights.
Key updates to the Model Policy
Notable changes to the Model Policy include:
- The addition of (1) cisgender; (2) transgender; and (3) non-binary persons as defined terms in the “What is Sexual Harassment” section. The Model Policy now emphasizes that “sexual harassment includes all forms of gender discrimination including gender role stereotyping and treating employees differently because of their gender,” and highlights that “discrimination based on sex stereotypes, gender expression and perceived identity are all forms of sexual harassment.”
- Revised examples of sexual harassment, and an emphasis on remote work. The Model Policy states that sexual harassment can occur when employees are working remotely, and “can include having such materials visible in the background of one’s home during a virtual meeting.”
- Revised “retaliation section” which now includes several examples of retaliation, including “demotion, termination, denying accommodations, reduced hours, or the assignment of less desirable shifts[.]”
- A statement emphasizing that managers and supervisors must affirmatively act (instead of waiting for an employee to make a claim) if they observe sexually harassing or discriminatory behavior.
- A new section on “bystander intervention,” providing five standard methods of bystander intervention that can be used when anyone witnesses harassment or discrimination–such as interrupting the harassment by engaging with the individual being harassed and distracting them from the harassing behavior, and recording or taking notes on the harassment incident to benefit a future investigation.
- A statement that although the focus of the Model Policy is on sexual harassment and gender discrimination, the prevention policies outlined should be considered applicable to all protected classes.
What should employers do now?
- Employers should work with counsel to review their current sexual harassment prevention policy and training materials to ensure compliance, and discuss any necessary changes. As mentioned, while employers do not need to use the exact updated version of the Model Policy, they must make sure that their policy meets the minimum standards set forth by the NYSDOL.
- New York State requires the Model Policy to be reviewed and revised every four years, so employers should anticipate proposed revisions and finalized updates to the Model Policy in approximately four years. This time around was no surprise for New York State employers: Governor Hochul announced plans to update the prior version of the Model Policy in July 2022, and proposed updates were released in January 2023. Employers should keep an eye out for announcements several months prior to when updates are expected.