Sexual harassment prevention materials for New York employers have been released by the state’s Department of Labor. These include their model sexual harassment policy, model training materials, minimum standards for each, model complaint form, and FAQs. Public comment on these materials will be accepted through September 12, 2018, after which time the department may release changes in response to those comments. Any changes, however, are likely to be limited and in favor of employers, so we encourage you to begin drafting your policy and planning for your training now.

According to the materials released, employers must provide sexual harassment prevention training to all employees by January 1, 2019, and then annually thereafter. New employees must be trained within 30 days of hire. There are no exceptions for temporary or part-time employees. We anticipate these deadlines will receive numerous public comments, and we will provide an update if they, or any other significant elements, change.

Training

An employer’s sexual harassment prevention training must be interactive, meaning it requires some level of participation by those being trained. The training must also include:

• An explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
• Examples of conduct that would constitute unlawful sexual harassment
• Information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment
• Information concerning employees’ rights of redress and all available forums for adjudicating complaints
• Information addressing conduct by supervisors and any additional responsibilities for such supervisors

In the FAQs, the Department suggests that to meet the requirement of being interactive, the training should include as many of the following elements as possible:

• Be web-based, with questions asked of employees as part of the program
• Accommodate questions asked by employees
• Include a live trainer made available during the session to answer questions
• Require feedback from employees about the training and the materials presented

The model training released by the department includes detailed instructions as well as an 18-page script. Employers will need to do some customization based on their industry and their specific harassment policy and complaint procedure. The instructions provided are as follows:

• This training is meant to be a model that can be used as-is or adapted to meet the specific needs of each organization.
• If specific employer policies or practices differ from the content in this training, the training should be modified to reflect those nuances, while still including all the minimum elements required by New York state law, below.
• The training should detail any internal process employees are encouraged to use to complain and include the contact information for the specific name(s) and office(s) with which employees alleging harassment should file their complaints.
• It should also be modified to reflect the work of the organization by including, for example, industry specific scenarios.
• To every extent possible, this training should be given consistently across each organization’s workforce to ensure understanding at every level and at every location.
• It is every employer’s responsibility to ensure all employees are trained to employer’s standards and familiar with the organization’s practices.
• All employees should complete sexual harassment prevention training before January 1, 2019.
• All employees must complete an additional training at least once per year. This may be based on calendar year, anniversary of each employee’s start date or any other date the employer chooses.
• All new employees should complete sexual harassment prevention training within 30 calendar days of their start date.
• Employers should provide employees with training in the language that is spoken by their employees.

Policy

The state has provided a model policy that we recommend employers adopt. Employers who choose to write their own policy must ensure that it does all of the following:

• Prohibits sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
• Provides examples of prohibited conduct that would constitute unlawful sexual harassment
• Includes 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
• Includes a complaint form
• Includes a procedure for the timely and confidential investigation of complaints that ensures due process for all parties
• Informs employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
• Clearly states 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 states that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful

The entirety of the released materials can be found here, and public comments on the materials can be submitted here.

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