On April 12, 2018, Governor Andrew Cuomo signed into law the 2019 New York State budget. In this budget, a new law was created for all employers across the State regarding sexual harassment training. This law became effective on October 9, 2018. The new law requires, in short, that employers provide annual training on anti-harassment and adopt written policies and procedures on the prevention of sexual harassment in the workplace.
On August 23, 2018, the State of New York released draft model materials for employers to implement the training and the policies and procedures. The State also issued some additional guidance for employers.
It’s important to reiterate that this new law impacts all employers in New York State.
Here’s what New York employers need to know about the new required sexual harassment training:
What Does the New Law Say?
Generally, the new law focuses on two areas of anti-harassment: (1) anti-harassment prevention policies and procedures and (2) anti-harassment training. For the policies and procedures, employers must implement specific written policies and procedures addressing anti-harassment prevention. These policies and procedures must contain certain language and provisions that we’ll highlight below. For the training, employers must implement annual anti-harassment training, with the first training to be completed by October 9, 2019. Like the policies and procedures, the training must contain certain elements, which we’ll highlight below as well.
NY’s Model Sexual Harassment Prevention Policy
Every New York State employer must adopt a sexual harassment prevention policy. If the employer chooses not to adopt the State’s model policy, then the employer must ensure that their model includes the following required information:
- Prohibits sexual harassment that’s consistent with the guidance issued by both the Department of Labor and the Division of Human Rights
- Gives examples of such prohibited conduct
- Include any information regarding federal and State laws, remedies available to victims, and any reference to local laws
- Includes and outlines the procedure for a timely and confidential complaint investigation
- Informs employees of their rights under the law
- States that sexual harassment is a form of employee misconduct and sanctions will be issued against such employees or managers engaging in such behavior
- States that retaliation is illegal against those employees reporting sexual harassment
- Include a complaint form in your policies.
Employers can always add more to their procedures than what’s required above, but they cannot provide less. Employers must submit a written copy of the procedures to their employees, whether in paper form or electronically. It is encouraged, but not required, to have employees sign an acknowledgment of receipt.
NY’s Model Sexual Harassment Training Documents
Employers are also required to provide annual anti-harassment training to employees, starting October 9, 2018. All initial training must be completed by October 9, 2019. After that, all training must occur annually. For newly hired employees, training must happen a soon as possible after their start date.
This training applies to all employees, including full-time, part-time, seasonal, and temporary employees. For employees who primarily work in another state, if they work a “portion of their time” in New York State, they must be trained.
Although there is no requirement to train third-party vendors that may work at your organization, do be aware that as of April 12, 2018, non-employees, such as vendors, consultants, and independent contractors are protected from sexual harassment at any location where they are working. Broadly, this includes anyone providing services to your organization under a contract.
If an employer develops its training, it must meet the minimum model guidelines set by the State below:
The State’s minimum model guidelines require that the training should:
- Include an explanation of the prohibition of sexual harassment that’s consistent with the guidance issued by both the Department of Labor and the Division of Human Rights
- Give examples of such prohibited conduct
- Include any information regarding federal and state laws, remedies available to victims, and any reference to local laws
- Inform employees of their rights under the law
- Educate employees and managers that sexual harassment is a form of employee misconduct and sanctions will be issued against such employees or managers engaging in such behavior
- Be interactive, meaning some kind of employee participation is required
Other Information for Employers
· Complaint Form
New York law also requires that all employers include a complaint form with their sexual harassment prevention policy. The State has created a model form for reporting alleged incidents of sexual harassment.
The State of New York created “Combating Sexual Harassment: Frequently Asked Questions” for both employees and employers. These FAQs give more guidance on the new law, the sexual harassment prevention policy, and the sexual harassment training documents.
· Mandatory Arbitration & Non-Disclosure Provisions
Effective July 11, 2018, mandatory arbitration and non-disclosure provisions or agreements are banned regarding sexual harassment claims. By removing mandatory arbitration claims, claimants can try their sexual harassment claims in a court of law, if their case demands it. Mandatory arbitration provisions can remain if they are a part of a collectively-bargained agreement.
Non-disclosure agreements are only enforceable if the complainant consents to such agreement after being given 21 days to consider the agreement and an additional seven days to revoke consent. These time periods may not overlap, and they cannot be waived or shortened. Additionally, all parties to the agreements must have received the terms of the contract before the commencement of the 21 days. In no other instance are non-disclosure agreements permissible regarding sexual harassment claims.
New York employers should take the time to review their current anti-harassment policies and procedures, complaint forms, investigative materials, and training materials to see if they’re compliant with the new law. It’s prudent to go ahead and start bringing everything into compliance now before the deadlines slip up on you.
Also, pay attention to your training program. You need to meet specific minimum content requirements and, it needs to be interactive. Develop a training program that will reach all of your employees. Proactively creating a training program that satisfies the law, and your corporate goals will put you on better footing come next October.