As reported earlier (NEW GUIDANCE: New York State Publishes DRAFT Model Sexual Harassment Policy and Training), in late August, the New York State Division of Human Rights and Department of Labor published draft versions of model anti-harassment training program and a model sexual harassment policy. The publication of these materials was in compliance with these agencies’ obligations under New York State’s new anti-harassment law. As a reminder, this law:
- Prohibits employers from using a mandatory arbitration provision in an employment contract in relation to sexual harassment;
- Requires that nondisclosure agreements can only be used when the condition of confidentiality is the explicit preference of the victim; and
- Amends the Human Rights Law to protect contractors, subcontractors, vendors, consultants, or others providing services in the workplace from sexual harassment in the workplace.
- Establishes minimum standards for sexual harassment prevention policies and sexual harassment training. All employers operating in New York State must either adopt and use the State’s model policy and training as-is or use the models as a basis to establish their own policy and training.
On October 1, 2018, these agencies released its final versions of the model training and policy materials to their website, which include
- a model sexual harassment policy,
- a model complaint form,
- a model training program (with a script, a PowerPoint training presentation, and a PowerPoint case studies presentation),
- a sexual harassment prevention toolkit for employers (with hyperlinks to policies and FAQs), and
- a sexual harassment prevention policy poster.
The website also includes the minimum standards for sexual harassment prevention policies and training, which are:
- Sexual harassment policies must:
- Prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
- Provide examples of prohibited conduct that would constitute unlawful sexual harassment
- 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
- Include a complaint form
- Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties
- Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
- 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
- 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.
- Sexual harassment training must:
- Be interactive
- Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
- Include examples of conduct that would constitute unlawful sexual harassment
- Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment
- Include information concerning employees’ rights of redress and all available forums for adjudicating complaints
- Include information addressing conduct by supervisors and any additional responsibilities for such supervisors
Employers must adopt the state’s sexual harassment prevention policy or use a similar policy that meet or exceeds the law’s minimum standards. Employers also must begin to provide sexual harassment training to their employees and can use either the state’s model training or their own – substantially similar – training. Please be advised that those employers who choose to adopt their own policies or develop their own training program must ensure that the policy they adopt and/or the training that they use meets or exceeds the minimum standards.
Take home for employers
Employers should prepare to publish and distribute a compliant policy and post the new poster by October 9, 2018. In addition, all employees working in New York State must receive sexual harassment training by or before October 9, 2019.