New York State’s Anti-Sexual Harassment Requirements Now In Effect: What Employers Should Know
In the wake of the #MeToo Movement, New York enacted legislation that is specifically targeted to sexual harassment in the workplace. On October 1, 2018, New York released final guidance materials regarding the legislation, including a model policy and a list of Frequently Asked Questions, which can be located here.
All New York employers must have updated anti-sexual harassment policies in place by October 9, 2018. All employers must distribute to all New York employees a sexual harassment prevention policy and complaint form that employees can use to report sexual harassment, which New York has made available online here.
For employers that opt to create their own policies, the policy must:
Prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
Provide examples of prohibited conduct that would constitute unlawful sexual harassment;
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;
Include a complaint form;
Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
Inform employees of their rights and redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
Clearly 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 supervisor and managerial personnel who knowingly allow such behavior to continue;
Clearly 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.
Additionally, employers must provide this policy in writing or electronically to employees. If the policy is made available on a work computer, employees must be able to print a copy for their own records. New York further requires that the policy be provided to employees “in the language spoken by their employees.” To assist employers, New York intends to publish the model materials in different languages; yet if the model materials are not available in an employee’s primary language, the employer may provide the employee with an English-language version. Employers do not have to provide this policy to “independent contractors, vendors or consultants.”
Furthermore, the complaint form does not need to be included in full in the employer’s policy, but the policy should be clear about where the form may be found, for example, on the company’s internal website.
In addition to the above requirements, all New York employers must provide employees with annual, interactive sexual harassment prevention training. The deadline for completing the training requirement has been extended to October 9, 2019.
New York employers may wish to work with competent counsel to examine their anti-harassment policies to ensure compliance with the legislation. New York employers should also make sure that they implement compliant annual preventative sexual harassment training by the October 9, 2019 deadline. In addition, New York employers operating in New York City should familiarize themselves with the requirements imposed by the Stop Sexual Harassment in New York City Act, which will impose additional training requirements beginning April 1, 2019.