One week before the October 9, 2018 deadline for compliance with the statewide sexual harassment prevention mandate (the "Mandate"), New York Labor Law § 201-g, New York State released revised model documents available on the state website:
Following a public comment period, these model documents have walked back a number of statements from the earlier (draft) models released in August and now more closely track the Mandate.
As we previously reported and as originally passed, the NYS Mandate requires all employers to:
- adopt a policy preventing sexual harassment in the workplace;
- annually train all employees on sexual harassment prevention; and
- provide a complaint form for reporting sexual harassment.
Let's start with good news. In what might be the most anticipated clarification for employers, the State now specifically states that employers have a full year (until October 9, 2019) to complete the first annual sexual harassment training.
New York employers are expected to distribute the revised Model Policy or their own policy, which must comply with the Minimum Standards For Sexual Harassment Prevention Policy (which has not changed since the August drafts), by October 9, 2018. The revised model policy contains a number of differences from the draft released in August, and more closely tracks the minimum standards of a sexual harassment prevention policy set forth in the Mandate.
- The revised model policy no longer uses any "zero tolerance" language.
- The revised model policy qualifies the statement that it should be posted prominently in all work locations: the policy should be posted in work locations "to the extent practicable." The revised model policy gives the example that an offsite work location would not be practicable.
- The revised model policy provides that an employer will commence investigation of any reports of sexual harassment immediately and will be completed as soon as possible (instead of within 30 days of the complaint, as the August model policy provided).
- The revised model policy claims to explain the "due process" that an employer must afford parties to a sexual harassment investigation by adding that alleged harassers will be accorded due process, "as outlined below." What is "outlined below" are the steps to the Complaint and Investigation process, which have not changed significantly from the August model policy.
- The revised model policy now requires, as part of the complaint investigation and documentation process, that the employer document the basis for the decision following an investigation into a report of sexual harassment (a new provision since the August draft model policy). There is no requirement in the Mandate that an employer conduct an investigation in the manner prescribed and create the extensive documentation outlined in the model policy.
- The revised model policy still includes the detailed description of state and federal remedies and explanation of the ability to contact the police (as set forth in the August draft), which is not explicitly required by the Mandate.
The Minimum Standards document continues to state that "employers should provide employees with the policy in the language spoken by their employees" and employers are still encouraged – but not required – to obtain a signed acknowledgement of receipt. The revised FAQs also explain that the policy can be provided to employees electronically (as long as employees are "able to print a copy for their own records.").
There is now a model Sexual Harassment Prevention Poster available as well. It includes a brief statement that employees are entitled to a workplace free from sexual harassment. It also states where the employer's sexual harassment prevention policy and sexual harassment complaint form may be found, and who a target of harassment can contact with questions or a report of sexual harassment.
As expected, the revised Sexual Harassment Prevention Model Training is now available in the form of two PowerPoint decks: one PowerPoint deck for the training and one PowerPoint deck of the six case studies.
The revised Sexual Harassment Prevention Model Training has not changed significantly from the August draft, but does have a few differences of note:
- The model training notes that a participant may share a personal or confidential experience during the training, and explains how the employer/trainer should respond: "If this happens, the trainer should interrupt and recommend the story be discussed privately and with the appropriate office contact. After the training, follow up with this individual to ensure they are aware of the proper reporting steps. Managers and supervisors must report all incidents of harassment."
- The model training notes that complaints of sexual harassment may be made verbally, as well as via the complaint form.
- The suggestion that the investigation must be completed within 30 days has been removed.
- The model training notes that employers need not train third-party vendors, contractors, or other non-employees, but are encouraged to post a copy of their policy in an area that will be visible to such individuals and may train such individuals.
The Minimum Standards For Sexual Harassment Prevention Training document has not changed since the August drafts, and still state that "employers should provide employees with training in the language spoken by their employees." The model training further clarifies that there is no minimum number of training hours, so long as the training meets the minimum standards.
The revised FAQs expand on what constitutes "interactive" training:
- If the training is web-based, it has questions at the end of a section and the employee must select the right answer;
- If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner;
- In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions;
- Web-based or in-person trainings that provide a Feedback Survey for employees to turn in after they have completed the training.
And they clearly state that "watching a training video or reading a document only, with no feedback mechanism or interaction, would NOT be considered interactive."
The revised FAQs provide that employers have until October 9, 2019 – one year from the effective date of the Mandate – to have all employees complete sexual harassment training, and then employees must be trained annually thereafter. The revised FAQs no longer state that all employees must complete sexual harassment training within 30 calendar days of commencing employment. This more closely aligns with the Mandate's requirement that all employees complete sexual harassment training within one year of beginning their employment, and annually after that.
The revised model complaint form no longer requests the complainant's home contact information (phone number and home address). The language is less formal in the questions and the optional questions about whether the claim has been filed elsewhere (a federal, state or local government agency or in court) have been removed.
The State's revised model documents reflect a number of changes from the August drafts, likely in response to the comments submitted by the employer community, as outlined above. The revised model documents align more closely with the requirements of the Mandate and some of the biggest concerns have been resolved (the "zero tolerance" language has been removed, the suggestion that investigations conclude within 30 days has been removed, and that deadline by which to complete the first annual training has been revised to October 9, 2019).
But, for New York City employers, stay tuned. The NYC Commission on Human Rights is separately charged with creating its own training requirements, which have not yet been issued, and may differ from the training protocols set forth by the State.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.