Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: This article was updated on August 15, 2018.
In April 2018, New York State and New York City each adopted expansive legislation directed at educating employees about workplace sexual harassment and reducing the incidence of harassment claims, as we reported in our prior article.
New Poster for NYC Employers:
On August 10, 2018, the New York City Commission on Human Rights published an English-language workplace poster that must be displayed by all New York City employers beginning on September 6, 2018, and can be found at this link. The poster requirement is mandatory; all employers in New York City must comply by the September deadline. The new legislation also requires that this poster be displayed in Spanish, which can be found here.
New Policy / Notice for NYC Employers:
The Commission also published a “fact sheet,” which satisfies a separate policy / notice requirement under the new City law. The fact sheet is intended to be provided to new employees upon hire, and is available here. Employers can decide not to distribute this fact sheet – which is basically identical to the poster – as a stand-alone document, provided that they incorporate the same information into an employee handbook or free-standing policy that they distribute to employees at the time of hire. All NYC employers must comply with the new policy / notice requirement beginning on September 6, 2018.
New Training Program and Policy Models:
Employers should be aware of related anti-harassment model documents that are expected to be issued in the coming months:
- Both New York State and New York City will require employers to provide all employees with interactive annual anti-sexual harassment training.1 Although neither the State, nor the City, has provided guidance as to how long the required training program must be, each will be publishing model sexual harassment training programs that will be available online without cost.
- The State’s training requirement goes into effect on October 9, 2018,2 and will require annual training of all employees that: (i) explains sexual harassment; (ii) provides examples of prohibited conduct; (iii) includes information concerning federal and state law related to sexual harassment and the remedies available under such laws; and (iv) informs employees of their rights of redress and all available administrative and judicial forums for adjudicating sexual harassment claims.
- The City’s training requirement goes into effect on April 1, 2019, and will require that employers with at least 15 employees include the following additional subjects in their anti-harassment training: (i) a description of the internal complaint process available to employees to address sexual harassment claims; (ii) the complaint process available through the EEOC, the State Division of Human Rights and the City Commission on Human Rights, including contact information for all three agencies; (iii) an explanation of retaliation and examples of prohibited retaliatory conduct; (iv) information concerning bystander intervention, including resources that explain how to engage in it; and (v) the specific responsibilities of supervisory and managerial employees in preventing sexual harassment and retaliation. Under the City’s law, employers also are required to keep a record of the training, including signed employee acknowledgments, which must be maintained for three years. Employers that choose to use the City’s model program when it is issued will need to separately train employees regarding their internal complaint process
- In addition to providing annual training, as of October 9, 2018, all employers in New York State must provide employees with a written anti-harassment policy, including a standard complaint form that employees can (but are not required to) use to submit concerns. The State Division of Human Rights and Department of Labor will publish a model policy and complaint form. Employers that wish to adopt or revise their own policies, rather than using the State’s upcoming model, should strive to ensure that their policies include the following required elements:
- A clear prohibition of sexual harassment and examples of conduct that constitutes unlawful sexual harassment;
- Information concerning federal, state and local anti-harassment laws, including the remedies that are available to victims of sexual harassment;
- A standard complaint form that can be used to submit complaints under the policy;
- A procedure for the investigation of complaints under the policy that is timely, confidential and “ensure[s] due process for all parties;”
- Information concerning employees’ rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
- A statement that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals who engage in sexual harassment as well as against supervisory and managerial personnel who knowingly allow such behavior to continue; and
- A statement that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.3
Employers with New York City-based employees may wish to consider including the following subjects in their anti-harassment policies, as well as those above, consistent with the posting and training elements of the City legislation:4
- The material covered in the newly released “fact sheet;”
- Information concerning bystander intervention, including resources that explain how to engage in it; and
- The specific responsibilities of supervisory and managerial employees in preventing sexual harassment and retaliation, and measures that such employees may take to appropriately address such issues.
1 N.Y. Labor Law § 201-G(2); N.Y.C. Admin. Code 8-107(30)(a). The New York City legislation defines “interactive training” as “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory forms of training as determined by the [City Commission on Human Rights]. However, such ‘interactive training’ is not required to be live or facilitated by an in-person instructor.” Id.
2 In the absence of further guidance, it is understood that New York State employers must begin their annual training programs as of October 2018, so that all employees will have been trained at least once by October 2019. However, we note that effective January 1, 2019, companies bidding for New York State contracts will be required to certify that they have “implemented a written policy addressing sexual harassment prevention in the workplace” and that they “provide annual sexual harassment prevention training to all of [their] employees,” so current and prospective state contractors should prepare to meet this certification requirement.
3 N.Y. Labor Law § 201-G(1)(a).
4 N.Y.C. Admin. Code 8-107(30).