As most New York employers are already aware, New York State’s laws prohibiting sexual harassment are among the most potent in the Country. Employers are required not only to address any such conduct that might occur in the workplace, but to take affirmative steps to reduce the likelihood of that occurring. Specifically, in 2018 New York State’s Labor Law was amended to require that employers provide sexual harassment and discrimination prevention training on an annual basis and maintain and distribute written policies prohibiting sexual harassment and other forms of workplace discrimination during the annual training, and at the time of hire.
New York City’s “Stop Sexual Harassment in NYC Act,” which was passed around the same time, imposes similar training and policy requirements. Shortly after these requirements were put into place, both New York State and New York City developed model policies and related training materials to assist employers in fulfilling their obligations.
Earlier this year, New York State released updated versions of its sample sexual harassment policy and training materials. While there is nothing radically different in these newer and more comprehensive materials, they do underscore the State’s commitment to battling the scourge of sexual harassment in the workplace. Given the amount of time that has passed since the law was first enacted, and in light of the recent updates, now is a good time for New York employers and their managerial staff to re-acquaint themselves with the core requirements of the law and update their policies and materials where necessary.
Scope of Protection
New York’s law prohibiting workplace sexual harassment applies not only to employees, but to certain non-employees as well, including contractors, subcontractors, vendors, consultants, and anyone else providing services pursuant to a contract. Employer policies should convey to employees that not only are they prohibited from engaging in harassing conduct towards co-workers, but also against third parties who may be present in the workplace, including vendors and customers.
Training Requirements
As was mentioned above, employers are required to conduct annual sexual harassment prevention training for their employees, and to maintain an anti-harassment policy that must be distributed at the time of hire, and at the annual training. Note that the training must be “interactive” and involve some level of participation by the employees being trained. Examples of acceptable employee participation given by the Department of Labor include:
- If the training is web-based, it has questions at the end of a section and the employee must select the right answer;
- If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner;
- In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions; and
- Web-based or in-person trainings that provide a Feedback Survey for employees to turn in after they have completed the training.
Simply watching a training video or reading a document is not considered interactive if there is no mechanism for interaction or feedback. Additionally, employers should note that they are required to provide the notice, policy, and training in languages other than English if an employee’s primary language is Spanish, Chinese, Korean, Polish, Russian, Haitian-Creole, Bengali, Urdu, French, or Italian. Starting May 31, 2023, these languages will be expanded to include Japanese, Hindi, Albanian, and Greek.
Model templates are available for these languages, however, it is important to note that the absence of a model template does not relieve an employer of its obligation to train employees who speak other languages. Lastly, training time is considered work time and must be compensated.
Model Policy Requirements
The State’s model sexual harassment prevention policy (as recently updated) fully complies with the law’s requirements, and may be distributed to employees on paper or electronically at the time of hire and on an annual basis.
Employers that choose to use their own policy must ensure that it meets or exceeds the minimum standards specified by the Department of Labor. Specifically, the policy must:
- Prohibit sexual harassment consistent with guidance issued by the New York Department of Labor in consultation with the New York State 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 of 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 supervisory and managerial personnel who knowingly allow such behavior to continue; and
- 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.
While employers are not required to obtain written acknowledgement that employers have received training and a copy of the employer’s policy, it is recommended that they do so to assist in addressing any future complaints or lawsuits.
Employer Resources
The New York State Department of Labor’s website provides employers (and employees) with a wide range of resources for preventing and addressing workplace sexual harassment: https://www.ny.gov/programs/combating-sexual-harassment-workplace
Among other things, the website includes “toolkits” with step-by-step guidance to implementing the required training and sexual harassment prevention policy, the updated model policy, a webinar explaining the law and its obligations, training videos, a list of frequently asked questions, and model forms.
As always, if you need assistance ensuring your companies policies comport with applicable laws, it’s always a good idea to consult with your attorney, professional employer organization, or other compliance specialist.
