Effective October 9, 2018, every employer in New York state, regardless of size, must adopt a sexual harassment prevention policy and provide annually to all employees a training program that each equals or exceeds the state’s model policy and training program.

On October 1, 2018, the Department of Labor in coordination with the Division of Human Rights released the state’s final model sexual harassment prevention policy, training program and documents.  These final documents contain several noteworthy changes from the draft documents released by the state in August 2018.

Most notably, while the state’s draft model documents suggested employers would be required to train all employees by January 1, 2019, the final documents released October 1, provide that all employees must be trained by October 9, 2019, one year from the effective date of the law.  A few other noteworthy changes from the draft versions of the state’s model documents are as follows:

The Final Model Sexual Harassment Prevention Policy:

• Removed the draft model policy’s language that all employers must have a “zero tolerance policy for any form of sexual harassment.” While all employers strive for a harassment-free workplace, the draft’s “zero tolerance” language caused confusion regarding what this language envisioned or would require.
• Removed the draft model policy’s language that harassment investigations must be completed with 30 days. The final document instructs that investigations should be commenced immediately and completed “as soon as possible.”
• Added language that harassment investigations should be kept “confidential to the extent possible.”
• Clarified that policy must be prominently posted “in all work locations to the extent practicable” such as a main office, “not an offsite work location,” perhaps addressing (without clarification) the concerns employers raised regarding remote workers.
• Modified the definition of “sexual harassment” to prohibit harassment against individuals “self-identified or perceived sex, [or] gender expression.”
• Modified the “examples of sexual harassment,” removing “physical assaults” and replacing it with “physical acts,” such as “touching, pinching, patting, kissing, hugging,” and other inappropriate conduct.
• Added a definition for “sex stereotyping,” stating that “sex stereotyping occurs when conduct or personality traits are considered inappropriate simply because they may not conform to other people’s ideas or perceptions about how individuals of a particular sex should act or look.”
• Added language that harassment investigations “may vary from case to case.”
• Added a requirement that all documentation related to an investigation must be kept in “a secure and confidential location.”

The Final Model Sexual Harassment Prevention Policy Training Program:

• Removed the draft program’s language that all employers must have a “zero tolerance” policy toward harassment.
• Removed the draft program’s language that all sexual harassment investigations should be completed “within 30 days,” and instead states that investigations should be commenced immediately and “completed as soon as possible.”
• Clarified that the training must be “interactive,” but, there is no requirement for a “live” trainer. The final training program provides that a recorded, in person, by phone and/or online training program is acceptable, provided that employees should to the extent possible be asked questions and required to provide feedback as part of the program and have the ability to ask questions about the program and have them answered in a timely manner.
• Indicates that the training should be delivered in the language spoken by employees. If, however, the employees’ primary language is one for which a “template training” is not available from the state, the employer may provide an English-language version of the training. The state still strongly encourages employers in such case to provide the policy and training in the language spoken by the employees.
• Instructs live trainers to interrupt any employee who tries to share a personal or confidential experience regarding harassment during the training; and instructs trainers to follow-up with the individual after the training and ensure that the employee knows how to report a sexual harassment complaint.
• Modified the draft’s legal definitions of “sexual harassment” and “hostile work environment harassment.”
• Replaced Supervisor “Harold” in example 4 with Supervisor “Sarah,” providing an example of same sex harassment.

The Final Model Standard Complaint Form:

• Removed the checkboxes asking individuals for yes or no answers related to whether or not they have they previously filed a complaint, lawsuit or hired an attorney. The final standard complaint form instead contains a statement at the bottom of the form indicating the individual should notify the employer and provide pertinent contact information if he/she has retained legal counsel.

The State’s Frequently Asked Questions Guidance:

• Makes clear that employees are not required to sign an acknowledgement of having read the model policy, or to sign any document indicating they have attending mandatory training. At the same time, the FAQ indicates that having employees record their receipt of the policy and attendance at training is a good business practice, and helpful in addressing future complaints.
• Indicates that the standardized complaint form does not have to be included in full in the employer’s policy. The policy must make clear, however, where the standardized complaint form may be found (for example, the employer’s website).