Draft NYS Sexual Harassment Prevention Templates Open for Public Comment until September 12, 2018

By: Tammy L. Riddle, Esq.

Earlier this year, in what has been referred to as “advancing the women’s agenda”, Governor Cuomo’s budget bill passed comprehensive anti-sexual harassment legislation that impacted all New York State employers and expanded protection against sexual harassment to non-employees in the workplace.  The two main requirements of the law are that every employer must have a written sexual harassment prevention policy and employers must provide all employees with annual sexual harassment prevention training.  With the October 9^th effective date for the changes in the Labor Law to take place, the Department of Labor (“DOL”) and New York State Division of Human Rights (“Division”) published for review on the DOL website a model sexual harassment prevention policy, a sexual harassment prevention training guide, and a comprehensive set of FAQs.  Each is designed to assist employers with meeting their obligations under the new Labor Law.

Minimum Policy Requirements and Draft Policy

An employer can adopt the model policy published by the DOL and Division available on the DOL website to meet its obligations pursuant to Section 201-g of the Labor Law or it must adopt a written sexual harassment prevention policy that meets or exceeds the minimum standards below:

1. Prohibit sexual harassment consistent with the guidance issued by DOL in consultation with the Division;
2. Provide examples of the prohibited conduct that would constitute unlawful sexual harassment;
3. Include information concerning the federal and state statutory provisions concerning sexual harassment, and 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 timely and confidential investigation of complaints and ensure due process for all parties;
6. Inform employees of their rights of redress and all available forums for adjudicating complaints administratively and judicially;
7. Clearly state that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory or managerial personnel who knowingly allow such behavior to continue; and
8. Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding involving sexual harassment is unlawful.

The draft model policy is seven (7) pages.  The model policy makes clear that it applies to non-employees (defined to be someone who is (or is employed by) a contractor, subcontractor, vendor, consultant, or anyone providing services in the workplace. The inclusion of non-employees was an expansion included in the new law. The draft policy has a strong emphasis on the prohibition against retaliation and suggests that employers indicate that they have zero tolerance policy for such retaliation.  The model policy also highlights the supervisor’s and manager’s obligations when it comes to reporting sexual harassment.  This is an important aspect to any employer’s policy and training as a failure of a supervisor or manager to report sexual harassment will not shield an employer from liability.  The model policy provides a detailed procedure for investigation of complaints of sexual harassment including completing the investigation within thirty (30) days and the process for collecting and preserving documents.  The model policy details the legal remedies available to employees including filing a complaint with the Division, the Equal Opportunity Employment Commission, New York City Commission of Human Rights, or the local police department.  There is also a draft complaint form available on the DOL website that employers can include as part of their sexual harassment prevention policies.

Minimum Training Standards and Draft Prevention Training

Every employer in New York State must provide annual sexual harassment prevention training to its employees starting October 9, 2018, and the training must be provided in the language that is spoken by their employees.  An employer that does not adopt the model training must adopt a training plan that meets or exceeds the following minimum standards:

1. Be interactive;
2. Include an explanation of sexual harassment consistent with the guidance issued by the DOL in consultation with the Division;
3. Include examples of the 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 DOL’s and Division’s model sexual harassment prevention training guide is twenty-four (24) pages and illustrates and expands on the requirements found in the prevention policy.  The guidance explains that use of the model training could be by power point, web based, or video presentation and comes with a script for an in-person group training.  The training states that the FAQs available online can accompany the training as additional information.   The guidance is clear that the training must be interactive.  The policy concludes with six (6) case studies that can be used as a true or false follow up quiz given to employees to test their knowledge on sexual harassment and whether, based on the facts presented, a certain situation would constitute unlawful sexual harassment.

FAQs

The FAQs are separated into different sections entitled: “Overview,” “For Workers,” “For Employers,” “Mandatory Arbitration,” and “Nondisclosure Agreements.” As you can see from the section titles, they span the gamut from defining sexual harassment to detailing the changes in the law that have already taken place as it relates to prohibiting mandatory arbitration clauses in any agreements that would require a party to submit a claim of sexual harassment to arbitration before proceeding with any other legal action.  Likewise, the FAQs discuss the changes to both the General Obligations Law and Civil Practice Laws and Rules that were added precluding an employer, its officers or employees from including in any settlement agreement or other resolution any term or condition which would prevent the disclosure of the facts and circumstances related to claims of sexual harassment unless it is the complainant’s preference.

Conclusion

Although in draft form and available for comment until September 12, 2018, the model policy, training guide, and FAQs may not see any significant changes following the close of the comment period.  Now is a good time for employers to start reviewing the draft model guides and their current policies to determine what revisions are needed to comply with the new legislation and to begin developing a training program to ensure employers meet the January 1, 2019 deadline for training all employees. 

The information contained in this blog is general information only and is provided as a legal alert.  The information contained herein is not to be construed as legal advice.