Effective Oct. 9, 2018, all New York employers must enact an anti-sexual harassment policy that meets or exceeds the standards set by a model policy, which will be drafted by the New York State Department of Labor (DOL) and New York State Division of Human Rights (DHR). The model policy, although not yet drafted, will reportedly include (1) a prohibition against sexual harassment, with examples of what sexual harassment is; (2) information regarding employees' rights and potential redress to adjudicate sexual harassment, including administratively and judicially, and the remedies available to victims of sexual harassment, including references to the federal and state provisions and a statement that there may be applicable local law; (3) a complaint form; (4) a confidential investigation procedure and a commitment to due process for all parties involved; (5) a clear statement that sexual harassment is misconduct and that any employee engaging in such misconduct, and any supervisory or managerial personnel knowingly allowing such misconduct, will be sanctioned; and (6) a clear prohibition against retaliation for those who complain or who assist in any sexual harassment proceeding. Employers should note that the requirement to promise a confidential investigation may conflict with requirements from the Equal Employment Opportunity Commission to conduct a thorough investigation, and directives from the National Labor Relations Board that employers cannot institute a blanket confidentiality provision on workplace investigations. It is unclear how or whether the DOL and DHR will remedy this contradiction in the model policy.
The law also mandates that effective Oct. 9, 2018, employers provide sexual harassment training, which must be equal to or exceed the standards of a model training program, which will be developed by the DOL and DHR. The model training program, although not yet drafted, will reportedly include (1) an explanation of what sexual harassment is, including examples of some conduct that would constitute unlawful sexual harassment; (2) information regarding employees' rights and potential redress to adjudicate sexual harassment, including administratively and judicially, and the remedies available to victims of sexual harassment, including references to the federal and state provisions; and (3) an explanation of conduct by supervisors and additional responsibilities of supervisors.
The content of both the policy and the training program will be available on the DOL's and DHR's websites at some point before the laws become effective in October.
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