Sexual Harassment Policy Mandatory
On October 9, 2018, ALL employers in New York State must adopt a policy against sexual harassment in the workplace. The Department has just finally issued a model policy for employers to adopt. Employers who already have a sexual harassment policy must make sure that their existing policy complies with the law's extensive requirements or modify the policy so that it does. Employers may want to simply adopt the model policy so there can be no dispute as to whether the employer's policy complies with the law. A copy of the model policy is attached to this Employment Alert and a fillable version can be found on the New York State Department of Labor's website. While some of the language in the model policy arguably goes beyond the law's requirements, employers may want to consider adopting the policy as a defense to any claim that its sexual harassment policy does not sufficiently meet the requirements of the law.
The policy must be provided to each employee either in writing or electronically and in the language spoken by the employee. If provided electronically on a work computer, the employee must be able to print a copy for his/her own records. The Department of Labor will create translations of the model in several languages and post them on the Department's web site. If the Department has not done so for a particular language, the policy may be provided to the employee in English. (This ALSO applies to the TRAINING requirement). The State is supposed to translate the finalized materials into Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. The State may add additional languages in the future.
By October 9, 2018, employers must adopt a compliant sexual harassment policy and distribute it to all existing employees. While the law does not require it, it is prudent to keep a record of who has received the new policy or have the employees sign an acknowledgement of receipt. The policy should also be posted in an area that is plainly visible to employees, third parties and non-employees.
Complaint Forms Mandatory
Employers must adopt written complaint forms. A model form can also be found on the Department of Labor's website. While employers are not required to include the complaint form in the sexual harassment policy, they must let employees know how to access it. A simple way to do so is to include the complaint form in the sexual harassment policy.
Sexual Harassment Training Mandatory
The good news is that the final regulations for the state law have given up the requirement that employees be given training within thirty days of hire (but recommends it be done as quickly as possible).[1] However, all employees must be trained annually and in the first cycle all existing employees must be given sexual harassment training, BUT THE DEADLINE HAS BEEN EXTENDED from January 1, 2019 until OCTOBER 9, 2019. Employees include all workers, whether exempt or non-exempt, part time, seasonal or temporary.
The sexual harassment training must meet the law's minimum requirements, which includes:
1) an explanation of sexual harassment consistent with guidance issued
by the Department of Labor and State Division of Human Rights;
2) include examples of conduct that constitutes unlawful sexual
harassment;
3) include information on federal and state law concerning sexual
harassment and remedies available to victims of sexual harassment;
4) include information concerning employees' rights of redress and ALL
available forums for adjudicating complaints, including, for example, employees working in New York City must be given information for the New York City Human Rights Commission; and
5) information addressing conduct by supervisors and any additional
responsibilities for such supervisors.
Sexual harassment training materials, including case studies and power points can be found on the New York State Department of Labor's website. In addition, supervisors and managers should be given additional training on their responsibilities.
The most treacherous part of the new training requirement is that it must be INTERACTIVE. Employers can conduct trainings by in-person trainers, third party-vendors or through the internet. However, those trainings must also meet the law's minimum training requirements. One of those requirements is an interactive component. Watching a program on the internet or reading through a document is INSUFFICIENT under the law. The guidance states that live trainers (in-person or by phone or video) is the "best practice." However, live trainers are not required. According to the guidance, web-based training is permissible if it meets the law's minimum requirements and has questions at the end of a section and the employee must answer those questions or has an option to submit a question on line and receive an immediate or prompt answer. Whether live or in person, the employees must be given a feedback survey to submit after the training is completed.
Note that according to the guidance, employers are required to ensure that all employees receive training on an annual basis, so if an employee is out on a day of training, employers must take appropriate steps to ensure compliance.
Training Already Conducted in 2018
If the training already conducted comports with the law's minimum requirements, then employees need not be re-trained in this first annual cycle. However, if the training does not meet the law's minimum requirements, then those employees must either be re-trained or provided with a supplemental training.
(If you experience problems with these downloads, feel free to download them from our website by clicking here.)
[1]
New York City employers who are subject to the New York City Human Rights law may still have to train new hires within a certain time of hire in 2019.
