Earlier this year, we issued a legal alert informing employers of amendments to the New York State Labor Law, effective October 9, 2018, that will require employers to review and update their anti-sexual harassment policies, complaint forms, and training programs. On August 23, 2018, the state released in draft form the awaited model sexual harassment prevention policy, standard complaint form and training program, as required by the Labor Law amendments.  These documents are available here. Employers are encouraged by the state to submit comments on or before September 12, 2018.

Sexual Harassment Policy with Standard Complaint Form

The amendments to the Labor Law signed into law by Governor Cuomo through the budget on April 12, 2018 will require every employer’s anti-harassment policy to include certain key requirements.  The policy must also equal or exceed the minimum standards to be provided by the state’s model sexual harassment prevention policy.  While many employers already have in place solid anti-harassment policies containing most of the key requirements set forth in the law itself, changes will be needed, as, for example, the amendments require that the policy include a standard complaint form for reporting alleged harassment, a statement that sanctions will be enforced against supervisory and managerial personnel who knowingly allow sexual harassment to continue, and information regarding the laws, remedies and forums available to complainants.  The policy must also make clear that it affords protection to individuals in the workplace beyond employees, such as interns, contractors, vendors, consultants and temporary workers.

Some employers have opted to proactively amend anti-harassment policies to include the key components contained in the amended Labor Law provisions, in anticipation of the state’s model policy.  Others are waiting to update policies until the state issues the model policy in final form to avoid the possibility of further required amendments.  (It is our understanding that the policy services to which some employers, such as school districts, subscribe will release an update to the recommended anti-harassment policy following publication of the state’s model policy.)

The amendments will require that employers provide the sexual harassment prevention policy to all employees in writing.  Employers are encouraged by the state to obtain a signed acknowledgment from each employee.

The draft model policy issued August 23, 2018 is potentially problematic for employers for a number of reasons, such as the following:

• The 7-page draft policy document may lead individuals to file complaints without affording employers an opportunity to address concerns internally, as it notes upfront that employees can file a complaint internally or with a government agency, or court.
• The draft document further provides that individuals who believe they have been the victim of retaliation may “seek compensation” by filing a complaint in “other available forums,” potentially bypassing the employer’s internal review.
• The draft policy states that sexual harassment subjects employers to “liability for harm to victims of sexual harassment,” failing to recognize legal standards and that employers are not liable in many cases where appropriate action is taken in accordance with established policies.
• The draft policy speaks to “even a single incident” of harassing conduct, failing to clarify that generally speaking conduct must be severe or pervasive to be actionable.
• The draft policy provides that employers must post the policy at “all work locations” and provide it to all employees upon hiring. Whether “all locations” includes locations where remote workers are engaged is not specified.
• The draft policy provides that investigations of alleged harassment “should be completed within 30 days.”
• The draft policy provides that reports of sexual harassment may be made orally or in writing, but that if the complaint is oral, the employer should encourage the complainant to complete the standard complaint form in writing; if the complainant refuses, the employer must itself complete the complaint form based on the oral reporting.
• The draft policy creates documentation requirements for investigations that are incredibly onerous, such as a list and summary of all documents reviewed in connection with the investigation and a list of names of those interviewed along with a summary of their statements.
• The draft policy requires employers to expressly inform the individual who filed the complaint of the right to file a complaint or charge externally.
• The draft policy includes extensive information regarding the New York State Division of Human Rights and Equal Employment Opportunity Commission, which is too detailed for a policy statement and seems to encourage external reporting.
• The draft standard complaint form expressly asks employees if they have filed a complaint with a federal, state or local government agency or a court and advises them that they “might have the ability to get help or file claims” with government agencies or courts, again potentially encouraging employees to bypass the employer’s appropriate review and handling of the matter internally.

Notably, the draft policy also speaks specifically to: harassment on the basis of gender identity; the categories of individuals that can be a target and/or perpetrator of harassment; and the fact that calls, texts, emails and social media usage may constitute sexual harassment even if away from work and/or outside of work hours.

Sexual Harassment Prevention Training

The amendment will additionally require interactive sexual harassment prevention training to be provided to all employees on an annual basis.  Such training must include certain key requirements set forth in the Labor Law and equal or exceed the model training to be developed by the state.

The draft model training program issued August 23, 2018 provides clarification around what the state views to be “interactive” training required by the Labor Law.  The draft model training program provides that the annual training “requires some level of participation by those being trained,” and “should include as many of the following elements as possible”: be web-based with questions asked of employees as part of the program; accommodate questions asked; include a live trainer made available during the session to answer questions; and require feedback from employees about the training and the materials presented.  The model training program will apparently be made available in many formats, such as video, once finalized.

The draft model training program extends beyond the legal requirements contained in the Labor Law to state that the sexual harassment prevention training should be completed before January 1, 2019.  Employers should consider and potentially now calendar dates prior to January 1, 2019 for employees to receive anti-harassment training.  The draft model training also states that all new employees should complete anti-sexual harassment training within 30 calendar days of their start date.

The draft documents provide that the policy and training should be provided in the language that is spoken by employees.  The draft model training program also seemingly encourages individuals to file complaints and/or charges with government agencies, as does the draft model policy.

We recommend that employers submit comments to the Department of Labor on or before September 12, 2018, expressing concern related to the draft documents.  We also recommend that pending finalization of the state’s model documents, employers should commence review and discussion of current policies, training materials and standard complaint forms.  We will provide further information promptly upon the state’s finalization of the model materials.  Should you have questions in the meantime or seek policy review and/or assistance with anti-harassment training, please contact the Harris Beach attorney with whom you typically work.

The Harris Beach Labor & Employment Practice Group is pleased to announce an upcoming live webinar to counsel Human Resources managers on aligning their workplace policies with new state mandates for prevention and training. Registration is open now.