New York Employers Face New Anti-Harassment Policy And Training Obligations
Earlier this year, in the wake of the #MeToo movement and the accompanying nationwide focus on sexual harassment, both New York State and New York City enacted new legislation intended to strengthen anti-harassment protocols in the workplace.
Among other things, these new state and municipal laws require each covered employer to (i) adopt and distribute a written sexual harassment prevention policy, and (ii) conduct annual sexual harassment prevention training for employees. New York State and City employers should review these new measures carefully and take appropriate steps to ensure that they are in compliance with their new obligations.
New York State
Sexual Harassment Policy.
First, every employer with employees who work in New York State is now obligated to implement and distribute to all such employees a written sexual harassment prevention policy. This new requirement became effective as of October 9, 2018.
A model harassment prevention policy, reflecting the requirements of the new law, has been posted on the websites of the state's Department of Labor and Division of Human Rights. A New York employer may use this model policy or develop its own, so long as the policy meets or exceeds the minimum standards contained in the model.
Specifically, a sexual harassment prevention policy must contain at least the following:
• A statement that the employer prohibits sexual harassment;
• Examples of prohibited conduct that would constitute sexual harassment;
• Information concerning applicable federal and state statutory provisions on sexual harassment;
• A description of the remedies available to victims of sexual harassment;
• A statement that there may be applicable local laws;
• A standard complaint form;
• A description of the employer's procedures for timely and confidential investigation of complaints;
• A statement informing employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
• A statement that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment, as well as supervisors and managers who knowingly allow such behavior to continue; and
• A statement that retaliation against individuals who complain of sexual harassment, or who testify or assist in any proceeding arising from such complaints, is unlawful.
Harassment Prevention Training.
Under the new state law, employers are also required to conduct annual, interactive sexual harassment prevention training for all employees working in New York State, including supervisors and managerial employees, as well as part-time and temporary/transient employees.
As with the new harassment policy requirement, the state has released a model sexual harassment training program that employers may use, but employers are free to develop and use their own training programs as long as they meet or exceed the standards outlined in the state's model training program.
In accordance with the statute, a sexual harassment prevention training program must be interactive and cover all of the following:
- An explanation of what sexual harassment is;
- Examples of conduct that would constitute sexual harassment;
- Information concerning federal and state statutory provisions on sexual harassment;
- A description of the remedies available to victims of sexual harassment;
- Information concerning employees' rights of redress and all available forums for adjudicating complaints; and
- Information addressing conduct by supervisors and additional responsibilities for supervisors.
Initial harassment prevention training for all employees must be completed by October 9, 2019. (The original deadline - January 1, 2019 - was extended in response to concerns expressed by employers that it did not provide sufficient time. However, state contractors must still meet the January 1, 2019 deadline and submit an affirmation that they have a sexual harassment policy and have provided training to all employees.) According to the state, new hires should complete such training "as quickly as possible" after starting their employment.
New York City
Employers in New York City also face similar - though slightly different - anti-harassment training obligations under a recently enacted city ordinance.
Under the Stop Sexual Harassment in NYC Act (the "Act"), employers with at least 15 employees working in New York City must conduct annual sexual harassment prevention training for (i) all employees, including supervisors and managers, who are employed in New York City for more than 80 hours in a calendar year, and (ii) temporary employees, including interns, who are engaged for more than 90 days of employment.
Employees must receive the first of their annual trainings by April 1, 2019 - approximately six months sooner than the deadline under the state law. However, a newly hired employee who has already received the required training through another employer does not need to be given additional training until the next annual cycle.
The New York City Commission on Human Rights ("NYCCHR") will develop and release an online training for employers to use. As with the New York State training, however, employers may choose to develop and provide their own training as long as it meets or exceeds the requirements of the Act.
To meet those minimum requirements, sexual harassment prevention training must contain:
- A statement that sexual harassment is a form of unlawful discrimination under local law;
- A statement that sexual harassment is also a form of unlawful discrimination under state and federal law;
- A description of what sexual harassment is, with examples;
- A description of any internal complaint process available to employees to address sexual harassment claims;
- A description of the complaint process available through the NYCCHR, the New York State Division of Human Rights, and the U.S. Equal Employment Opportunity Commission, including contact information;
- A statement prohibiting retaliation for complaints of harassment, including examples of retaliatory actions;
- Information concerning bystander intervention in incidents of harassment, including any resources addressing how to intervene; and
- The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that supervisors and managers may take to appropriately address sexual harassment complaints.
Employers must keep records of all trainings conducted under the Act, including signed employee acknowledgements. In addition, employers are required to display a workplace notice regarding anti-harassment rights and responsibilities, which can be found on the NYCCHR's website.
Finally, employers subject to training requirements under both New York State and City law do not need to conduct separate trainings, as long as the substantive requirements of both laws are met.
Recommendations For Employers
We recommend that New York State and City employers conduct a comprehensive review of their policies and procedures regarding sexual harassment, and work with experienced employment counsel to update those policies and procedures accordingly. In addition, employers are encouraged to schedule and conduct the mandatory training sessions as soon as possible.
If you would like our assistance in updating your sexual harassment prevention policy or designing a sexual harassment prevention training tailored for your organization, or if you have any other questions relating to these new laws, please feel free to contact one of our experienced employment attorneys.
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