As previously reported in our June 4, 2018 DLA Piper Employment Alert, last spring both New York State and New York City enacted legislation aimed at sexual harassment prevention and remedies. As important requirements of these laws begin to take effect, the city and the state have each published materials to assist New York-based employers with compliance.
New York City materials
The New York City Commission on Human Rights recently released its anti-sexual harassment rights and responsibilities poster and factsheet on its website. As of September 6, 2018, all employers in New York City must conspicuously post the poster, in at least 8.5" x 14" (legal size) and in both English and Spanish. Additionally, all New York City employers must provide the factsheet to individual employees at the time of hire.
These materials can be found by following the subsequent links:
New York State materials
The New York State Department of Labor, in coordination with the New York State Division of Human Rights, also recently released draft materials in connection with the new requirements for New York employers to provide all employees with a written sexual harassment prevention policy by October 9, 2018 and to conduct sexual harassment training of current employees by January 1, 2019. On August 23, 2018, the state issued a model sexual harassment policy, a model complaint form for reporting sexual harassment, a model training program and an FAQ, all of which are in draft form pending a public notice and comment period running through September 12, 2018.
Although employers are not required to adopt the state's model policy or training program, any customized policies or training programs must meet or exceed the state's minimum standards.
These draft materials can be found by following the subsequent links:
Important questions and considerations for employers
The model policy promulgated by New York State is more extensive than the policies many employers currently have in effect. The policy is seven pages in length and, among other things:
- requires managers and supervisors to report any complaint that they receive, or any harassment that they observe
- mandates "zero tolerance" for retaliation against anyone who complains in good faith about sexual harassment (which does not mean that individuals must automatically be terminated for violations, but rather that some remedial or disciplinary action must be taken, up to and including termination)
- includes numerous examples of the types of acts that may constitute unlawful sexual harassment and
- identifies a preferred method for investigating complaints, including a requirement that all investigations should be completed within 30 days.
Notably, the model policy also requires employers to provide employees with information about procedures for filing claims with external anti-discrimination agencies, such as the Equal Employment Opportunity Commission (which enforces federal anti-discrimination laws) and the New York State Division of Human Rights.
Additionally, with respect to the mandatory training – which must be "interactive," meaning it must have some form of employee participation, such as allowing employees to ask questions and/or provide feedback – the state requires that all employees must complete the model training, or a comparable training that meets the minimum standards, by January 1, 2019.
As the state has yet to publish finalized materials, this will not leave much time for employers to comply with the requirement before the new year. Since it is unclear whether training that is conducted before the October 9, 2018 effective date will suffice to satisfy an employer's 2018 training obligations, we recommend waiting until after October 9 to conduct anti-harassment training this year, even if the training would otherwise meet the state's minimum requirements.
Moreover, employers with operations outside of New York State will need to determine whether to apply New York's requirements nationwide or to adopt separate, state-specific policies. This is a difficult decision which will involve balancing the benefits of uniformity against the potential burdens associated with adopting New York's expansive anti-harassment policy to jurisdictions which may have less stringent requirements.
Finally, the model policy applies to sexual harassment, but employers will need to consider whether it should be broadened to cover complaints regarding other forms of harassment and discrimination as well (ie, complaints regarding harassment based on race, age or national origin, among other protected characteristics). As a general matter, we anticipate most employers will prefer to develop one policy which covers all types of discrimination, but preferences may vary depending upon past practice and the nature of the employer's business.
Once the public notice and comment period closes, and the state's model policy, complaint form and training program are finalized, employers will need to move quickly to update their policies and practices in light of these new developments.
Learn more by contacting the authors or any of the New York-licensed attorneys in the DLA Piper Employment group.