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New York State and New York City Anti-Harassment Laws

10/01/18

Author: ADP Admin/Monday, September 24, 2018/Categories: State Compliance Update, New York

Overview: Earlier this year, New York State passed significant laws combating sexual harassment in the workplace. The State of New York (the “State”) has now issued draft guidance for employers on the mandatory sexual harassment prevention policies and annual employee training required by the legislation. The State’s guidance is not yet finalized and additional FAQs or guidance may be released. New York City (the “City”) also passed the “Stop Sexual Harassment in NYC Act” in the spring of 2018, which strengthened the City’s laws against harassment in the workplace. The new State and City laws differ, and employers in New York City must comply with both the new State and new City laws.

Details:

New York State:
As previously reported, in April 2018, New York State passed significant laws combating sexual harassment in the workplace. See New York State Enacts Laws Combating Sexual Harassment in the Workplace for further information.

The State of New York has now issued draft guidance for employers on the mandatory sexual harassment prevention policies and annual employee training required by the legislation. Starting October 9, 2018, the enacted legislative package requires, among other things, that employers in New York adopt the State’s model sexual harassment prevention policy or modify an existing sexual harassment policy to meet the State’s minimum standards, and provide annual sexual harassment prevention training to all employees.

Draft Guidance:
The state’s newly created dedicated website contains a model sexual harassment prevention policy, an accompanying model complaint form, a “Combating Sexual Harassment: Frequently Asked Questions” publication, and model sexual harassment prevention training materials. Additionally, the website contains proposed “minimum standards” guidelines for employers to use in tailoring their own policies and training programs.

The State’s model policies, complaint form, FAQs, and minimum standard guidelines are in proposed form. New York State has invited comments on the draft guidance. The comment deadline was September 12, 2018.

Model Sexual Harassment Prevention Training
The State’s model sexual harassment prevention training includes a sample script for trainers, model scenarios, and steps for reporting complaints. While the current guidance does not specify how long the required training must be, it explains that the training must include “some form of employee participation, meaning the training may: be web-based with questions asked of employees as part of the program; accommodate questions asked by employees; include a live trainer made available during the session to answer questions; and/or require feedback from employees about the training and the materials presented.”

For an employer that chooses not to use the model created by the State Department of Labor and Division of Human Rights, the training must meet or exceed the State’s minimum standards, which means that it must:
  1. Be interactive;
  2. Include an explanation of sexual harassment consistent with guidance issued by the State;
  3. Include examples of conduct that would constitute unlawful sexual harassment;
  4. Include information concerning the federal and State statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
  5. Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
  6. Include information addressing conduct by supervisors and any additional responsibilities for such supervisors.
The FAQs clarify that by January 1, 2019, employers must provide all employees with sexual harassment prevention training, either using the model created by the State or a comparable version that meets the State’s minimum standards. Furthermore, new employees or employees who start after January 1 must complete the requisite annual sexual harassment training within 30 calendar days of hire. It is possible that this date will be pushed back based on comments from the employer community.

Lastly, the FAQs also state that employers are “required to ensure that all employees receive training,” including temporary/transient employees, or even if someone works for one day for the employer. Note that for New York City employers, these requirements will need to be integrated with New York City training requirements effective in April 1, 2019, which are discussed below.

Model Sexual Harassment Prevention Policy
The website also includes a model sexual harassment prevention policy. Employers may choose to distribute this model, which also includes a complaint form for employees to use, or modify an existing written policy to meet or exceed the State’s minimum standards. If so, the sexual harassment prevention policy must:
  1. Prohibit sexual harassment consistent with guidance issued by the State;
  2. Provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  3. Include information concerning the federal and State statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
  4. Include a complaint form;
  5. Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  6. Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  7. State that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
  8. State that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.
The FAQs clarify certain aspects of the required sexual harassment prevention policy. For example, an employer must provide employees with a policy in writing, but can do so electronically, so long as employees are able to access the policy on a computer provided by the employer during work time and print a copy. Additionally, while the FAQs note that an acknowledgment of receipt of the policy is not required, it is recommended.

New York State contractors also must submit an affirmation that they have a sexual harassment prevention policy and that they have trained all of their employees, beginning January 1, 2019.

New York City: 

Similarly, New York City passed the “Stop Sexual Harassment in NYC Act” in spring of 2018, which strengthened the City’s laws against harassment in the workplace. The Act requires that all employers in New York City post an anti-sexual harassment rights and responsibilities poster. The English and Spanish versions of the poster can be accessed here.  Employers also must provide an information sheet on sexual harassment to each employee at the time of hire, or include the information in their employee handbook. The Commission has now posted sample English and Spanish language information sheets on its website.  The deadline for both the poster and information sheet distribution was September 6, 2018. In addition, employers with at least 15 employees (including interns) must conduct annual sexual harassment “interactive training” for employees, including supervisory and managerial employees, starting April 1, 2019. See New York City Enacts Stop Sexual Harassment in NYC Act and New York City Commission on Human Rights Publishes Anti-Sexual Harassment Poster and Information Sheet for further information. 


Action Required:
New York State:

  • Review New York State’s dedicated website and Combating Sexual Harassment: Frequently Asked Questions.
  • Train and inform all employees involved with human resources on the new requirements.
  • Update current sexual harassment policies to ensure that they meet the minimum standards set forth in the new State laws. A sample policy and complaint form are available on New York State’s dedicated website (https://www.ny.gov/combating-sexual-harassment-workplace/employers). This sample policy and complaint form are still in draft form. Once the State finalizes its requirements, a compliant policy and complaint form will be available. ADP will continue to monitor this issue and advise clients when the policy and complaint form are finalized and available.
  • Distribute a compliant sexual harassment policy and complaint form to all employees by October 9, 2018.
  • Adopt annual sexual harassment training that meets the minimum standards set forth in the new State laws. Interactive training that comports with New York State’s new laws will be made available to clients once the State finalizes its training requirements. A draft of New York State’s training transcript can be found here. Please note, New York State is still finalizing this training transcript and it may change prior to the October 9, 2018 effective date. ADP will continue to monitor this issue and advise clients when training is finalized and available.
  • Train all employees between October 9, 2018 and January 1, 2019, and then annually thereafter.
New York City: Please be sure to contact your Human Resources Business Partner if you have any questions.

*Produced in cooperation with Jackson Lewis P.C.

This content provides practical information concerning the subject matter covered and is provided with the understanding that ADP is not rendering legal advice.

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