Updates to New York State Guidance to Employers on Sexual Harassment Policies and Trainings

Effective October 9, 2018, all New York State employers are required to adopt written sexual harassment prevention policies for employees and, within a year (by October 9, 2019), all employers must implement mandatory anti-harassment training. In August 2018, New York Governor Andrew Cuomo’s office circulated draft guidance to the public, including a model sexual harassment policy, model training materials, a model complaint form, and FAQs. To read more about specific employer obligations under the guidance, refer to the Labor and Employment Group’s August 28, 2018 alert. As expected, the Governor’s office has now released the finalized materials, which have some notable variations from the draft:

• Extension to implement mandatory training: Employers received a welcome extension to implement their first mandatory anti-harassment training as the finalized materials shifted the deadline from January 1, 2019 to October 9, 2019. Under the final guidance, there is no minimum number of training hours or minimum length of time for each training session required per year for employees.

• Training new hires: The State removed language requiring employers to train new hires within 30 days, and replaced it with “as soon as possible.”

• Training in other languages: The updated FAQs state that employers have an obligation to provide training in other languages for employees whose primary language is one other than English, based on the languages available through model templates provided by the State.

• Modification of definition of sexual harassment: The definition of “sexual harassment” is modified to prohibit harassment against individuals’ “self-identified or perceived sex, [or] gender expression” and to prohibit unlawful “sex stereotyping.”

• Posting sexual harassment policy in work locations: The draft policy stated that it must be posted prominently in all work locations. The final version narrows this directive and states the policy “should be posted prominently in all work locations to the extent practicable (for example, in a main office, not an offsite work location).”

• Updated complaint form: The draft model complaint form included questions about whether the complainant filed a lawsuit or is represented by counsel. The final model form replaced these questions with the following statement: “If you have retained legal counsel and would like us to work with them, please provide their contact information.”

• Conducting investigations: The State replaced language in the model training program that investigations should be concluded within 30 days, instead stating that the investigations should be “commenced immediately” and completed “as soon as possible.” The State also added language that investigations should be kept “confidential to the extent possible.” This revision should provide employers with some much-needed relief, as complex investigations may take longer than 30 days to conduct and complete, and absolute “confidentiality” cannot be guaranteed and may not be appropriate in all cases.

• Training about additional responsibilities for supervisors: The final guidance states that all employees, not just managers and supervisors, must be made aware of the “extra requirements for those in managerial/supervisory roles” concerning sexual harassment prevention, reporting, and investigating.

• Training third-party vendors or other non-employees: There is no requirement to train (or provide a copy of the harassment prevention policy) to third-party vendors or other non-employees, although employers are “encouraged to provide the policy and training to anyone providing services in the workplace.” This revision creates some uncertainty as to who should receive the policy and training, and employers should consult with counsel before implementing a practice with respect to non-employees so as to minimize joint employer risks.