On October 1, 2018, following a public notice and comment period, New York issued its final guidance regarding the state's new anti-sexual harassment requirements. The finalized guidance, which includes, among other things, a model sexual harassment prevention policy, model anti-harassment training materials and a complaint form (all of which can be accessed here), has been changed in several material respects from the draft materials published earlier this year (as described in our September 12, 2018 DLA Piper Employment Alert). With the finalized materials in hand, New York employers should consider the following items:
Sexual harassment training
First, and perhaps most significantly, the January 1, 2019 deadline to conduct sexual harassment training has been extended to October 9, 2019, after which future training must be completed annually. Notably, the finalized guidance has relaxed the anti-sexual harassment training requirements in the following ways:
- Rather than requiring new employees to be trained within 30 days of their first day of employment, the final materials state that new employees must complete training "as quickly as possible."
- The draft materials stated that New York employers must train individuals working just "one day" in New York. The final guidance, however, eliminates the "one day" standard and clarifies that employers must provide training to employees based outside of New York only if the "individual works a portion of their time in New York State."
Sexual harassment prevention policy
Next, although the deadline for the training was extended, the October 9, 2018 deadline to provide all employees with a written sexual harassment policy did not change; employers must provide such a policy to all employees by this Tuesday, October 9, 2018.
In this regard, employers have two options. One, they can implement their own policy that meets the following minimum standards:
- Prohibit sexual harassment consistent with guidance issued by the New York State Department of Labor in consultation with the New York State 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.
Or two, employers can adopt the finalized model policy, which has the following significant changes from its draft predecessor:
- Instead of requiring the investigation of complaints to be completed "within 30 days," the finalized policy now states that investigations should be completed "as soon as possible."
- Unlike the draft model, the finalized version no longer references a "zero-tolerance policy" for employers when dealing with sexual harassment and/or retaliation.
- The finalized policy specifically states that the investigation process "may vary from case to case," that documents stemming from the investigation should be kept in a "confidential location," and that written documentation of the investigation should include "[t]he basis for the decision."
If an employer provides the policy electronically, employees must be able to print a copy for reference. Alternatively, employers can provide the policy in writing. Further, while not required, employers are "encouraged" keep signed acknowledgements, the guidance explaining, "[t]hese records may be helpful in addressing any future complaints or lawsuits."
The model complaint form for reporting sexual harassment has also been finalized. While similar to its earlier draft, employers should note:
- Unlike the prior draft, the form no longer asks whether the individual has filed a claim with a government agency or a lawsuit in connection with the complaint or whether the individual has hired an attorney.
- A copy of the complaint form need not be included in the policy, as long as the policy informs employees where the form may be found, such as on the employer's internal website.
Along with the finalized models and guidance, also published were (a) the new "Sexual Harassment Prevention: Employer Toolkit," which reviews the final policy and training materials and provides practical "step-by-step guidance" for employers; and (b) an optional Sexual Harassment Prevention Policy Notice, to help "direct both employees and non-employees to [an employer's] Sexual Harassment Prevention Policy."
Please contact the authors or any New York licensed attorney in the DLA Piper Employment group with questions regarding New York's new anti-sexual harassment requirements.