New York releases final models and guidance regarding Anti-Sexual Harassment Legislation — employers must update policies by October 9

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harassment prevention training for employees, among other things[1] The state invited the public to comment on the draft guidance materials, in response to which we submitted over a dozen comments.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.[2]

Guidance regarding sexual harassment prevention training

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 Specifically, the draft guidance materials indicated that employers were required to provide such training by January 1, 2019, a deadline which does not appear in the statute.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:

• If the training is web-based, it has questions at the end of a section and the employee must select the right answer.
• If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner.
• In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions.
• Web-based or in-person trainings that provide a Feedback Survey for employees to turn in after they have completed the training.

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:

• Employers must train employees once per year. After the initial training, the year may be based on the calendar year, anniversary of each employee’s start date or any other date the employer chooses.
• Employers should train new hires “as soon as possible.” This guidance is a noticeable departure from the draft guidance, which previously required training for new hires within 30 days of hire.
• There is no minimum length of time for the required training.
• Employers must train all employees who work in New York State, even if an employee only works a portion of their time in New York State.
• An employee’s failure to attend the training does not obviate the employer’s requirement to train that employee. However, the guidance suggests that employers may discipline employees for failing to attend the mandatory training.
• The sections in the model training materials that are not expressly required by the law are not mandatory, but are strongly recommended.
• If an employer already conducted employee training this year that did not meet the requirements of the new law, employers only need to provide supplemental training to address the new requirements. The guidance implies that employers that provided anti-sexual harassment training in 2018 must also do so in 2019.

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.

Guidance regarding the Anti-Sexual Harassment Policy requirement

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:

• Employers do not need to adopt the investigative procedures described in the model policy, so long as employers outline their own investigative procedures in their policy.
• Employers need not include a complete copy of the Model Complaint Form for Reporting Sexual Harassment in their policy, but must be clear about where the form may be found, such as on a company’s internal website.
• Employers must provide employees with this policy in writing or electronically. If an employer makes a copy of the policy available on a work computer, employees must be able to print a copy for their own records.
• For new hires, employers should distribute the policy to employees prior to commencing work.
• The new law does not require employers to obtain a signed acknowledgment of receipt of the anti-sexual harassment policy. That being said, the guidance provides that “employers are encouraged to keep a signed acknowledgment and to keep a copy of training records.”
• The state will translate and publish on their website the guidance materials into Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole as quickly “as possible.” The guidance also indicates that employers should provide the policy and training in the “language spoken by their employees.”

Other guidance materials

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.

Next steps for employers

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.[3]

1. A copy of our August 31, 2018, alert regarding the draft guidance materials can be found here.
   [Back to reference]
2. Copies of the state’s final guidance materials can be found here.
   [Back to reference]
3. Information regarding the New York City law can be found in our previous alerts, here and here.
   [Back to reference]

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.