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A Lot Too Late: New York State Issues Final Sexual Harassment Guidelines

A Lot Too Late:  New York State Issues Final Sexual Harassment Guidelines Delaying Sexual Harassment Training Deadline, But Providing Short Deadline to Adopt Policy

On October 1, 2018, New York State issued final guidance on the soon to be enacted Sexual Harassment Law.  This new law requires employers of all sizes to adopt a sexual harassment policy and to implement training.  The State has a comprehensive website with information and materials about the new requirements.  To access the State’s website, click here.

Some highlights and important dates are discussed below.

Policy and Complaint Form

By October 9, 2018, employers are required to adopt and distribute to employees a sexual harassment prevention policy and complaint form that meets the requirements set forth in the law. With this incredibly short deadline, employers must act quickly.  Employers should either adopt the State’s model policy or review and revise their existing policies to ensure those policies meet the minimum standards required under the law.

The policy must:

  1. prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  2. provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  3. 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;
  4. include a complaint form (according to the FAQs issued by the State, the complaint form does not need to be included in the policy, but employers should clearly indicate where it may be found);
  5. include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  6. inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  7. 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
  8. 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.

Employers must provide each employee with a copy of its policy in writing and should provide employees with the policy in the language spoken by their employees. The policy also is required to be posted and disseminated to new hires upon hire.

Training

Under the final guidance, employers now have a year, until October 9, 2019, to provide interactive training.  Despite this delayed timeframe, the State is encouraging employers to provide training as soon as possible to new hires.

Employers should begin thinking about how to comply with this training requirement.  While in person training is not required, the training must be interactive. The State has made clear that the training must include a feedback mechanism (e.g., questions and answers either in test form or live or a feedback survey) in order to meet the requirements.

New York City Employers

The New York City Human Rights Law also recently was amended to require annual training for employers with more than fifteen employees.  That law will be effective in April 2019.  As of September 6, 2018, employers of all sizes are required to post the Stop Sexual Harassment Act poster in English and Spanish in 8.5×14 inch paper size and 12-point font and to distribute the Fact Sheet to all new hires (or incorporate the content into an Employee Manual). The City has not yet issued proposed training materials. Once issued, New York City employers to whom this requirement applies may need to modify training to comply with any City requirements.

For copies of the New York City Stop Sexual Harassment Act Notice in English, please click here.

For copies of the New York City Stop Sexual Harassment Act Notice in Spanish, please click here.

For copies of the New York City Stop Sexual Harassment Fact Sheet, please click here.

If you need assistance complying with these requirements, please contact Andrea Neuman or the MSF lawyer with whom you normally consult.

Andrea B. Neuman
Partner, Chair, Employment
(212) 655-3513
abn@msf-law.com