October 02, 2018
Employment Law Alert
Employment Law Alert
Author(s): Tara E. Daub
Following a public comment period on its draft guidance, New York has issued final guidance materials and published an updated model policy and model training materials. New York employers must have compliant policies in place by October 9, 2018, and must train employees by October 9, 2019, consistent with the mandatory criteria.
As we previously reported, New York State recently published draft models and guidance materials in connection with the recent legislation expanding protections against sexual harassment in the workplace. This legislation, effective October 9, 2018, requires New York employers to adopt and distribute to employees an anti-sexual harassment policy and begin conducting annual sexual harassment prevention training for employees, among other things The state invited the public to comment on the draft guidance materials, in response to which we submitted over a dozen comments. Earlier this week, the state revised and published an updated model policy, training materials and additional guidance regarding the requirements of this legislation. This alert summarizes the final guidance materials.
Most notably, the final guidance provides employers with more time to ensure that all New York employees receive sexual harassment prevention training under the law. Specifically, the draft guidance materials indicated that employers were required to provide such training by January 1, 2019, a deadline which does not appear in the statute. In the final guidance materials, however, the state indicated that employers have until October 9, 2019, to provide such training to their employees, and annually thereafter.
The updated Frequently Asked Questions (FAQs) regarding this legislation elaborate on the requirement that the anti-sexual harassment training be “interactive.” The guidance encourages employers to use a live trainer and refers to a live trainer as a “best practice for effective and engaging trainings.” The FAQs also confirm that employers cannot merely show employees a video or give employees a document to comply with the law. Although web-based training is permissible, it must comply with the criteria set forth in the statute. The FAQs also provide a list of examples of circumstances that would satisfy the interactivity requirement:
The FAQs do not, however, articulate whether any single one of these examples would be sufficient to satisfy the interactivity requirement. The FAQs also clarify several other aspects of the training requirement, the most notable of which are summarized below:
Aside from the FAQs, the state revised the language in the model training script and published model slides and case studies that a live trainer may use to conduct the training.
Although the state provided employers with more time to complete the training, the deadline for employers to update and distribute an anti-sexual harassment policy that meets the statutory criteria remains October 9, 2018. The state made several revisions to the language in the model sexual harassment policy and model complaint form. In addition, the state’s updated FAQs provide additional details regarding the policy requirement. For example:
Aside from the guidance regarding the policy and training requirements, the state also released additional materials for employers regarding this law, including a Sexual Harassment Prevention Employer Toolkit and a Sexual Harassment Prevention Policy Notice. With respect to the Sexual Harassment Prevention Policy Notice, the state encourages employers to physically post this document in the workplace, although this is optional. The state also encourages employers to provide their anti-sexual harassment policy and training to “anyone providing services in the workplace,” although this is also optional.
The updated FAQs also include guidance regarding the other provisions of the new law, including the expansion of the New York State Human Rights Law to prohibit sexual harassment of certain non-employees in the employer’s workplace, the limitations of the use of nondisclosure agreements during settlements of sexual harassment claims and the prohibition of almost all mandatory arbitration clauses for sexual harassment claims.
Employers should examine their anti-harassment policies and work with counsel to update them to conform to the model policy published by the state. Although employers are permitted to adopt the model policy, they should carefully examine the provisions of the model, some of which are not required by the law and may not be compatible with the employer’s existing policies and practices. Employers must revise, finalize and distribute the updated policy to all New York employees by October 9, 2018, which is less than one week away.
Employers should also plan to conduct training for all employees by October 9, 2019. Employers with employees working in New York City should be mindful of the Stop Sexual Harassment in New York City Act, which will impose additional training requirements beginning on April 1, 2019.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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