Employers will face both legal and compliance challenges resulting from New York State’s enactment of Labor Law Section 201-g, effective Oct. 9, 2018. The law requires all New York State employers, regardless of size, to have a written sexual harassment prevention policy in place by this date and provide employees with annual sexual harassment prevention training by Oct. 9, 2019.
Sexual harassment has been unlawful for many years as a form of sex discrimination and therefore, this is not a new concept for most major employers. Many employers have already adopted some form of a sexual harassment prevention policy, but this law has much more of a sweeping effect. The new law requires every employer to adopt a policy with very specific requirements, including a complaint mechanism and investigation procedure. This is likely not captured in employers’ existing policies, requiring extensive updating. Alternatively, employers can adopt the model policy provided by the New York State Department of Labor and the NYS Division of Human Rights (NYSDHR) to ensure compliance, but employers should be careful in doing so because it is more detailed and sweeping than necessary.
The new law now covers non-employees like independent contractors providing services in the workplace. In addition, the sexual harassment prevention policies now need to set forth a procedure for how complaints will be investigated, something employers would likely not have set out in detail in the past. To minimize risk and liability exposure, employers will want to ensure that those designated with the responsibility for investigating complaints of sexual harassment familiarize themselves with the process outlined in the employer’s policy. Further, those individuals should ensure that the process is followed each time a complaint is filed and that any business reason for any deviation is documented.
The training component of the new law will likely have the biggest impact on New York State employers. As this is considered employer-provided training time, sexual harassment training must be counted as regular work hours and is paid. Employers have been given some relief from the training requirement with an extension to provide the first training by Oct. 9, 2019. Even with the additional time, employers should be cautious and provide the training as soon as possible to comply with the law and minimize their exposure as employers can be held liable for the wrongful acts of their employees.
In addition, new hires will either need to be trained within a reasonable time after being hired or be able to demonstrate that they received compliant training within the past year. This creates a record keeping issue for the new employer. Should a complaint be investigated by an external agency, the employer will have the burden of proving the newly hired employee received timely and appropriate training. The recommended practice would be to provide the training to newly hired employees within thirty days of hire. This, of course, burdens the employer with the time and cost of constantly providing sexual harassment prevention training throughout the year as it hires new employees. While there is no legal requirement to maintain records of which employees completed the training or when under state law, there is a requirement for those employers within New York City. Employers can be certain that they will be asked during an investigation for documentation on their training program. The best practice is to maintain records of the training provided, by whom, to whom and on what dates. A sign in sheet with the date for employees is ideal.
Keeping In Compliance
Additional record keeping requirements related to sexual harassment prevention training is found in the New York City Stop Sexual Harassment Act. Signed by Mayor Bill de Blasio on May 9, 2018, the act applies to employers with 15 or more employees in New York City and beginning April 2019, requires employers to train their employees annually. In this case, the New York City Commission of Human Rights will be providing an online training on its website to satisfy the training requirement. The act requires employers to keep a record of all trainings, including a signed employee acknowledgment. All employers in the city are required to post, in conspicuous locations, a notice in both English and Spanish informing employees of their anti-sexual harassment rights and responsibilities. Labor Law Section 201-g does apply as well to employers in the city. While the posting requirement is only for employers within New York City, it is a good idea for others to post along with the other Department of Labor posting requirements.
There is no real guidance yet on what constitutes appropriate training. However, the NYSDHR has provided a PowerPoint that one can use as its training program. Depending on the trainer, this may or may not be adequate. We do expect more complaints to be filed initially as a result of this new law until the employees truly understand what constitutes unlawful sexual harassment. And, more complaints will be filed externally with investigating agencies (EEOC, NYSDHR, NYC Human Rights Commission) because the law requires employers to tell employees in their policies where to file their claim.
At this time, employers should have their sexual harassment prevention policies in place and disseminated and should be thinking about how to conduct their training. It will take some time to determine whether the law will have its intended effect of reducing or eliminating sexual harassment in the workplace. If effective, we may see similar legislation passed as it relates to policy requirements preventing other types of discrimination. Rather than waiting for additional legal requirements, it is a good time for employers to consider expanding their policies to include similar protections for all unlawful discriminatory conduct based on protected classifications such as religion, race, or sexual orientation.
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Ann E. Evanko is President and Managing Member of Hurwitz & Fine, P.C. Her primary areas of practice are Employment Law & Commercial Litigation.
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