New York State Issues Final Guidance on Sexual Harassment Prevention Laws

HIGHLIGHTS:

• Following up on legislation passed earlier this year in the wake of the #MeToo movement, the New York State Department of Labor has issued final sexual harassment prevention models for employers, who must put in place compliant handbook policies by Oct. 9, 2018.
• New York employers must prepare to provide required annual sexual harassment training to employees, as well as review and revise written employment policies to comply with heightened requirements.

Following up on legislation passed last spring in the wake of the #MeToo movement (see Holland & Knight's alert, "Sexual Harassment Prevention, Accusation Compliance Changes Required for N.Y. Employers," July 2, 2018), the New York State Department of Labor has issued final sexual harassment prevention models for employers, who must put in place compliant handbook policies by Oct. 9, 2018.

The final model policy and training materials are available on the New York State Department of Labor website.

Anti-Sexual Harassment Policy

Effective Oct. 9, 2018, New York employers will have to circulate to all employees a written sexual harassment prevention policy. Employers may either adopt the model policy or create their own policy that meets or exceeds the model's minimum standards and contains the following key components identified in the applicable legislation:

• a statement prohibiting sexual harassment
• examples of prohibited conduct that would constitute unlawful sexual harassment
• information on the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment, in addition to a statement that there may be additional applicable local laws (e.g., New York City)
• a standard complaint form
• a procedure for the timely and confidential investigation of complaints that ensures due process
• a statement informing employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
• a statement that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment as well as against supervisory and managerial personnel who knowingly allow such behavior to continue
• a statement that it is unlawful to retaliate against individuals who report sexual harassment or those who testify or assist in any proceeding

Although many employers already have in place sexual harassment prevention policies, many New York employers will, at minimum, need to revise their policies to include a standard complaint form and a listing of the available forums to adjudicate complaints (e.g., New York State Division of Human Rights (NYSDHR), U.S. Equal Employment Opportunity Commission (EEOC), New York state courts).

Also effective Oct. 9, 2018, New York employers will need to provide annual sexual harassment prevention training to all employees. The initial training must be completed within one year of the effective date, i.e., by Oct. 9, 2019, and annually thereafter. Employers may present either the state model or their own model that meets the state's standard. The training must be "interactive" and include the following components:

• an explanation of sexual harassment
• examples of conduct that would constitute unlawful sexual harassment
• information on the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment
• information concerning employees' rights of redress and all available forums for adjudicating complaints
• additional responsibility for conduct by supervisors

Next Steps for Employers

New York employers should consult with legal counsel to review their anti-harassment policies, training programs and practices. Employers also should take the time now to review and revise their readiness plans for any employee complaints of unlawful harassment in the workplace.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.