On April 12, 2018, Governor Cuomo signed the 2019 New York State Budget, which contains provisions updating New York’s sexual harassment laws. In part, the Budget mandates the Department of Labor and the Division of Human Rights to develop and promulgate a Model Sexual Harassment Policy and a Model Sexual Harassment Prevention Training for all employers.
After making draft copies of the Model Policy and Training available for public comment over the summer, the State recently released finalized versions. By October 9, 2018 all employers in the State, no matter how many employees they have, must implement either the Model Sexual Harassment Policy or a policy that meets certain minimum standards. In addition, by October 9, 2019 (extended from the initial deadline of January 1, 2019) all employees must complete either the Model Sexual Harassment Prevention Training or a training program that meets certain minimum standards.
The Model Sexual Harassment Policy published by the State includes many provisions that employers have not traditionally included in such policies. Even if they choose not to adopt the Model Policy, employers must now ensure that their sexual harassment policy: (1) prohibits sexual harassment; (2) provides examples of conduct that constitutes sexual harassment; (3) includes reference to federal and state provisions regarding sexual harassment along with remedies available to victims and a statement that there may be relevant local laws; (4) includes a complaint form or where to find one; (5) outlines a procedure for the investigation of complaints of sexual harassment; (6) informs employees that they have administrative and judicial rights relating to their complaint; (7) states clearly that sexual harassment is misconduct and sanctions will be enforced against employees as well as supervisors that allow such misconduct to continue; and (8) states clearly that retaliation against those who complain about sexual harassment or assist in an investigation is unlawful.
These elements must be included in each employer’s policy and that policy must be provided to each employee in writing or electronically no later than October 9, 2018.
As for the Model Sexual Harassment Prevention Training, unlike past training programs where employees could just click through slides or a computer program, every employer’s sexual harassment training must now be interactive. This does not necessarily mean that employers need to hire an in-person trainer, but it does require some feedback on the part of those being trained. Interaction can come in the form of posing questions to employees as part of the training program, giving employees the opportunity to ask questions and having those questions answered in a timely manner, and/or requiring feedback from employees about the training and materials presented. The State has made a script, PowerPoint, and video presentation available online to assist employers with delivering the training.
Note that the deadline for initial sexual harassment training has been extended to October 9, 2019. After that, new employees must receive the training as soon as possible after being hired and all others must receive it once per year.
If employers have any questions about the Model Sexual Harassment Policy or Training, they should contact their attorney to ensure that they understand and comply with their obligations under the new law.