In the wake of the #MeToo movement and widespread attention on sexual harassment in the workplace, on April 12 Governor Cuomo passed into law the 2019 Budget, which included a package of laws aimed at combating sexual harassment. These laws apply to employers of all sizes – even those with only one employee and obligates employers, among other things, to 1) distribute a written sexual harassment policy, and 2) perform annual sexual harassment training. Now is the time to revisit your anti-sexual harassment programs and policies and make the necessary changes to ensure compliance with these laws. Here are a few key elements employers need to know.
Sexual Harassment Policy:
By Oct. 9, every employer in New York state must have a written sexual harassment prevention policy in place and distribute it to its employees.
Employers can use the model policy created by the New York State Department of Labor and the New York State Division of Human Rights, or they can create their own policy provided that it equals or exceeds the minimum standards set forth in the model policy.
Some key elements the policy must include:
- A statement prohibiting sexual harassment;
- Examples of prohibited conduct that would constitute unlawful sexual harassment;
- Information concerning the federal and state statutory provisions concerning sexual harassment, remedies available and a statement that there may be applicable local laws;
- A standard complaint form;
- A prohibition on retaliation;
- A procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
- An explanation to employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially; and
- A statement that sanctions will be enforced against those who engage in sexual harassment and managers and supervisors who knowingly allow sexual harassment.
A sexual harassment policy can be provided to employees in hard copy or electronically but must also be accessible and printable during working hours. Employers are required to prepare and distribute a compliant written policy by October 9, 2018.
Mandatory Sexual Harassment Training:
Beginning Oct. 9, every New York state employer must provide sexual harassment prevention training to all employees on an annual basis. Employers can either use the model sexual harassment prevention training program created by the New York State Department of Labor and the New York State Division of Human Rights or establish their own training program that equals or exceeds the minimum standards provided by the model. While it hasn’t been officially confirmed, it seems likely that this training can be given online provided it is interactive. The training must include the following:
- An interactive component;
- An explanation and examples of prohibited sexual harassment;
- Information on federal and state statutes prohibiting sexual harassment;
- Remedies and rights of redress under the applicable statutes; and
- An explanation of added responsibilities for supervisory employees.
Employers may satisfy the “interactive” training requirement by: (1) asking questions of the employees as part of the program; (2) including question and answer portion to accommodate employee questions; (3) using a live trainer to conduct the training or making a live-trainer available to answer questions; or (4) requiring employee feedback about the training. Employers should implement as many of the above interactive components as is feasible. All employees must receive a compliant sexual harassment training on or before October 2019.
New hires must receive a compliant sexual harassment training within 30 calendar days of hire.
Special Provisions for New York City Employers:
Beginning April 1, 2019, all New York City employers with 15 or more employees must provide interactive (but not necessarily live) sexual harassment prevention training to all full- and part-time employees and interns annually, and to new employees within 90 days of hire.
The NYC Commission on Human Rights will create an interactive training module that will be available to employers free of charge. While these government-created training programs will meet minimum legal requirements, employers should consider providing more detailed, in-person sexual harassment and anti-discrimination training programs.
Octillo attorneys are available to help employers navigate these new sexual harassment laws, including drafting and reviewing sexual harassment policies as well as offering webinars and interactive training programs to ensure compliance with the new laws.
DISCLAIMER: This client advisory is for general information purposes only. It does not constitute legal advice, and may not be used and relied upon as a substitute for legal advice regarding a specific issue or problem. Advice should be obtained from a qualified attorney or practitioner licensed to practice in the jurisdiction where that advice is sought.
