New York State Issues Final Sexual Harassment Guidance Documents and Extends Training Deadline

As we previously reported, effective Oct. 9, 2018, New York State employers are required to adopt and distribute a written sexual harassment prevention policy and annually conduct interactive sexual harassment prevention training. N.Y. Labor Law Section 201-g lists the specific minimum standards that must be included in an employer’s sexual harassment prevention policy and training, and authorizes the Department of Labor to consult with the Division of Human Rights to create a model sexual harassment prevention policy and model sexual harassment prevention training program.

Following the publication of our prior alerts, the state issued a number of final guidance documents on Oct. 1, 2018. Such final documents include a model policy, model training documents, a model complaint form, FAQs and additional guidance as referenced below.

Sexual Harassment Prevention Training

In response to the public comments, the state provided several clarifications to the sexual harassment training requirement. The most notable changes concern the deadlines to complete training.

The final FAQs indicate that employees must complete interactive training that meets or exceeds the minimum standards by Oct. 9, 2019. This deadline relaxes the requirement in the draft guidance, which would have required employees to complete training by Jan. 1, 2019.

The final guidance also relaxes the deadline for new hires to receive training, which states that training should be conducted as soon as possible. The draft guidance would have required new hires to be trained within 30 days of their start date.

The final FAQs and a new document titled “Employer Toolkit” provide the following additional instructions and clarifications regarding training:

• The training must be completed by all employees who work or will work in New York State, which includes all workers, exempt or non-exempt employees, part-time workers, seasonal workers, and temporary workers, regardless of immigration status. Further, if an individual works a portion of his or her time in New York, even if based in another state, the individual must be trained.
  
  
• Employers are not required to train third-party vendors or other non-employees.
  
  
• All employees must receive training on an annual basis. If employees already received training in 2018 that did not meet all new requirements, employers need only provide supplemental training to ensure all requirements are met. Of course, this does not prevent an employer from conducting a new training for employees before Oct. 9, 2019, that complies with all requirements. In subsequent years, the annual training may be based on the calendar year, anniversary of each employee’s start date or any other date the employer chooses.
  
  
• While the training must be interactive (meaning it requires some level of feedback by those being trained), the state no longer includes having a live trainer as one of the suggested elements of the training.
  
  
• Employers must make managers and supervisors as well as all employees aware of the extra requirements for those in managerial/supervisory roles. Employers are not required but may choose to provide additional or separate training to supervisors and managers.
  
  
• Finalized materials will be translated into Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole and will be made available on the website “as quickly as possible.”

An employer may, but is not required to, utilize and adopt the state’s model training materials that have been provided online in various formats — Microsoft Word, PDF and PowerPoint — and include a script, slides and case studies, provided their training meets or exceeds the minimum standards under the law.

Sexual Harassment Prevention Policy

Effective Oct. 9, 2018, the state requires employers to adopt and distribute to all employees a sexual harassment prevention policy that meets or exceeds the minimum standards.

The final FAQs and Employer Toolkit provide the following key additional clarifications:

• Employers are not required to provide their policy to contractors, subcontractors, vendors and consultants, but are “encouraged to provide the policy to anyone providing services in the workplace.”
  
  
• All new future employees should receive the policy before commencing work.
  
  
• The complaint form does not need to be included, in full, in the policy. However, employers should be clear about where the form may be found.

Sexual Harassment Prevention Policy Notice

In addition to revised final documents, the state released for the first time a Sexual Harassment Prevention Policy Notice. The state’s website indicates that “[t]his poster, which is an optional tool, is one way to direct both employees and non-employees to your Sexual Harassment Prevention Policy and should be displayed in a highly visible place.”

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This alert is not an exhaustive list of all the state’s changes and suggestions. More information can be found on the state’s website on Combating Sexual Harassment in the Workplace.

Employers should immediately take steps to ensure that their current policies comply with the state’s laws and requirements. Employers are encouraged to speak with their counsel to ensure compliance. Furthermore, although the training deadline has been extended to Oct. 9, 2019, it is necessary for employers to think about how they will implement training and when, particularly for employees who are covered under the New York City Human Rights Law, which has its own training requirements that go into effect on April 1, 2019. Information about the NYC training requirements can be found in our Sept. 4, 2018 client alert or on NYC’s website.

We will continue to monitor any developments and provide updates regarding the NYC training requirements. For questions or concerns regarding harassment prevention policies, training and compliance, please contact a member of Kramer Levin’s Employment Law Department.