By Tammy L. Riddle, Member
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. The law takes effect on October 9, 2018 and requires all employers to train their employees by January 1, 2019.
Minimum Policy Requirements
An employer can adopt the model policy published by the DOL and Division available in draft form 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:
- Prohibit sexual harassment consistent with the guidance issued by DOL in consultation with the Division;
- Provide examples of the prohibited conduct that would constitute unlawful sexual harassment;
- 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;
- Include a complaint form;
- Include a procedure for timely and confidential investigation of complaints and ensure due process for all parties;
- Inform employees of their rights of redress and all available forums for adjudicating complaints administratively and judicially;
- 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
- Clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding involving sexual harassment is unlawful.
Minimum Training Standards
Every employer in New York State must also 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:
- Be interactive;
- Include an explanation of sexual harassment consistent with the guidance issued by the DOL in consultation with the Division;
- Include examples of the conduct that would constitute unlawful sexual harassment;
- Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
- Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
- Include information addressing conduct by supervisors and any additional responsibilities for such supervisors.
With October 9th just around the corner, now is a good time for employers to start reviewing 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.