On October 1, 2018, New York State released final versions of the model sexual harassment prevention policy and the model sexual harassment training materials that relate to the anti-sexual harassment legislation passed earlier this year, along with the final FAQs to assist employers in navigating the new laws. Among other things, the anti-harassment legislation requires that employers maintain sexual harassment policies and training programs that, at a minimum, comply with the now released models. Accordingly, employers that do not have a sexual harassment prevention policy or that do not implement sexual harassment training, will now be required to do both, while employers that do have a policy and training program in place must ensure that they meet or exceed the standards provided by the models. The model policy and training program can be found here. Notably, these requirements go into effect this coming Tuesday, October 9, 2018, and are discussed further below.
Policy and Complaint Form
Beginning on October 9, 2018, all employers must distribute to all New York State employees a sexual harassment prevention policy and a complaint form that employees can use to report inappropriate conduct.
Further guidance on this requirement can be found in the final FAQs available here.
Training
The new anti-sexual harassment laws require employers to provide all employees with annual, interactive sexual harassment prevention training. The deadline for complying with this new training requirement is October 9, 2019 (in drafts of the new legislation, the deadline was January 1, 2019). With respect to new hires, employers are encouraged to provide training "as soon as possible" (in drafts of the new legislation, employers were required to train new employees within thirty (30) days of hire).
As above, additional information is available in the final FAQs linked above.
In light of the extended deadline for completing the new sexual harassment training required by New York State, employers in the five boroughs of New York City may wish to hold off until after April 1, 2019, to complete such training, because that is when the new training requirements of the Stop Sexual Harassment in New York City Act also take effect (discussed below).
Background
For those unfamiliar with the new anti-harassment legislation enacted by New York State in April of this year, it specifically targets sexual harassment in the workplace by, among other things:
- Prohibiting employers from mandating arbitration of claims or allegations of sexual harassment;
- Prohibiting employers from including non-disclosure agreements in any settlements of sexual harassment claims, unless confidentiality is requested by the complainant and certain statutory obligations are met; and
- Requiring employers to adopt the model sexual harassment prevention policy and training program referenced above, or otherwise establish a policy and training program that equals or exceeds the minimum standards provided by the materials.
The legislation also amended the New York State Executive Law to make employers potentially liable to non-employees, such as independent contractors, vendors, and consultants, who are subjected to sexual harassment in the employer's workplace, if the employer, its agents, or supervisors knew or should have known that such sexual harassment was occurring and failed to take immediate and appropriate corrective actions. Previously, non-employees were not covered by the New York State laws prohibiting sexual harassment.
Aside from the foregoing, employers in New York City also should be familiar with some of the key provisions of the Stop Sexual Harassment in New York City Act, which was signed into law in May of this year following the enactment of the New York State legislation discussed above and amends certain provisions of the New York City Code. Notably, it amends the New York City Code as follows:
- Expands the statute of limitations for claims of gender-based harassment from one year to three years from the date of the alleged harassing conduct;
- Expands liability for sexual harassment claims to all employers, as opposed to only employers with four or more employees, which was previously the case;
- Requires employers to clearly display an anti-sexual harassment poster in employee break rooms or other common areas, detailing the rights and responsibilities of employers and employees with respect to sexual harassment; and
- Requires employers with fifteen (15) or more employees to conduct annual, interactive anti-sexual harassment training for all employees in New York City, including supervisory and managerial employees. This requirement goes into effect on April 1, 2019.
Need Help?
The experienced team of employment attorneys at Wood Smith Henning & Berman LLP have already assisted clients in preparing for and complying with the new legislation by offering in-house presentations and counseling on the new laws and their impact on employers, employees, and outside third-parties, as well as reviewing and revising employers' sexual harassment policies and training programs to encompass the expanding breadth of potential liability, implementing procedures to expeditiously and effectively respond to complaints of sexual harassment, and negotiating and drafting settlements that comport with the new laws. For more information, please contact Robert Hellner at (212) 999-9110 or rhellner@wshblaw.com.