Good News and Bad News for NYS Employers. Which do you want to hear first?

​Back in May we alerted you to recent amendments to the NYS Human Rights Law that required all NYS employers to adopt and distribute a sexual harassment prevention policy that meets or exceeds certain minimum standards by October 9, 2018. Employers were also required to provide compliant sexual harassment training to all employees by that same date, although it was later extended to January 1, 2019. The good news is employers have another full year, until October 9, 2019, to implement the more onerous requirement of the new law: sexual harassment training for all current employees who work a portion of their time in the state. New employees, on the other hand, must be trained "as quickly as possible," which is still better than "within 30 days of their start date" that was the original requirement.[i]

The bad news is, if you didn't take our advice back in May to "promptly evaluate and revise" your existing sexual harassment policy to ensure compliance with the specific requirements of the new state law, you need to do so immediately! The October 9, 2018 deadline has already passed! Don't be tempted, however, to simply adopt the model sexual harassment policy and training program that were developed by the NYS Department of Labor and NYS Division of Human Rights because it seems quick and easy. The recently issued model policy and training program include requirements that are not contained in the law and/or may not be the best fit for your company. You may be engaging in onerous, unnecessary tasks if you simply adopt the models as drafted.

Another pitfall is to assume that your company's existing sexual harassment policy is adequate and that you do not need to act. That may not be the case, since the new law requires many things that are not always included in many sexual harassment policies, including, information about federal and state law governing sexual harassment, the remedies available to victims of sexual harassment, the administrative and judicial forums available for adjudicating sexual harassment complaints, a procedure for the timely and confidential investigation of complaints and a detailed complaint form. All sexual harassment policies should be reviewed, revised as necessary, and distributed to employees in writing as soon as possible. They should also be in the language spoken by the employees.

Minimum Standards Checklist: Policy[ii]

The state does not require that the model policy be adopted and has provided a checklist for employers to use to insure compliance with the new law. An employer must ensure that the policy that they adopt meets or exceeds the following minimum standards:

The policy 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; and
• 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.

Minimum Standards Checklist: Training[iii]

The state also does not require that the model training program be adopted and has provided a checklist for employers to use to insure compliance with the new law while drafting their training program. An employer must ensure that the training program that they adopt meets or exceeds the following minimum standards:

The 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 unlawful sexual harassment;
• Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to targets of sexual harassment;
• Include information concerning employees' rights of redress and all available forums for adjudicating complaints; and
• Include information addressing conduct by supervisors and additional responsibilities for supervisors.

Reminder for NYC Employers Too

There is also bad news for NYC employers if they did not realize that the new NYC law against sexual harassment required them, as of September 2018, to conspicuously display a new poster in the workplace and provide all new hires with a handout that includes the following information: (i) a description of sexual harassment and an explanation that it is unlawful under federal, state and local law; (ii) examples of sexual harassment; (iii) information about the local, state and federal administrative complaint processes; and (iv) an explanation of the prohibition against retaliation for claiming sexual harassment. Since the deadline has already passed, action should be taken to comply with these mandates as soon as possible.

It's advisable to have the policy and training program you plan to adopt reviewed by a professional to ensure it's in compliance with all these requirements. The good news is . . .

Excelerator offers all employment policies and handbook reviews as well as webinar, in-person and learning management system dynamic video training and quizzes on sexual harassment prevention as well as printed reports / certificates to certify annual sexual harassment training compliant with state and city requirements.

[i]
https://www.ny.gov/sites/ny.gov/files/atoms/files/SexualHarassmentPreventionToolkitforEmployers.pdf
[ii]
https://www.ny.gov/sites/ny.gov/files/atoms/files/MinimumStandardsforSexualHarassmentPreventionPolicies.pdf
[iii]
https://www.ny.gov/sites/ny.gov/files/atoms/files/MinimumStandardsforSexualHarassmentPreventionTraining.pdf

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