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.
On Monday, October 1, 2018, the State of New York released final versions of a sexual harassment policy, complaint form, and employee training relating to sexual harassment, among other guidance, pursuant to legislation enacted in April 2018 targeting workplace sex discrimination and sexual harassment.1 Final versions of the State’s documents can be found here.
By way of background, in August the State released draft versions of model training materials, a model complaint form, a model anti-sexual harassment policy, and a series of FAQs for public comment.2 As previously discussed,3 there were several concerns with the proposed model forms, many of which appear to be rectified in the final versions of the forms.
Notable improvements in forms and FAQs as compared to the drafts include:
- Clarification that the initial deadline to train employees is October 9, 2019, rather than by year-end as the draft documents had suggested.
- Removal of the term “zero tolerance” in keeping with the Equal Employment Opportunity Commission’s observation that using such a phrase may in fact deter employees from making complaints when they witness harassing behavior.4
- Clarification that only employees who work or will work in New York State need to be trained annually (rather than, for example, an out-of-state employee who may supervise employees in New York) and employers are not required to train non-employees.
- A distinction among the content elements in the State’s model training to differentiate those elements that are required by statute and those elements that are merely recommended but not mandatory for employers to implement.
- Encouragement to train newly hired employees “as soon as possible,” rather than within 30 days as the draft documents suggested.
Even with these improvements, there remain several notable concerns for employers in the final documents:
- The model complaint form continues to refer to “the sexual harassment”— suggesting as a foregone conclusion that any employee complaint constitutes unlawful harassment, even before an investigation has occurred.
- The FAQs suggest that an employer’s model anti-harassment policy must set out in extensive detail the employer’s investigative and document retention procedures regarding internal complaints.
- Rules regarding non-disclosure agreements (NDAs) remain murky, with the FAQs continuing to require that two separate documents be executed, though it is not clear why this is necessary from a practical perspective.
These preliminary observations are intended to provide employers with a timely update on this new development. Expect future updates on this topic, including options for anti-harassment training, as the documents are further reviewed and analyzed.
1 See Devjani H. Mishra and Emily C. Haigh, New York State and City Expand Anti-Harassment Requirements for Employers, Littler Insight (Apr. 13, 2018).
2 See Eli Freedberg and Emily Haigh, NY Agencies Publish Draft Sexual Harassment Model Policy, Complaint Form, and Training, Littler ASAP (Aug. 24, 2018).
3 See Eli Z. Freedberg and Devjani H. Mishra, Significant Compliance Challenges in New York State's Proposed Anti-Sex Harassment Rules: What Can Employers Do Now?, (Sept. 7, 2018). Littler filed extensive comments detailing several areas of concern.
4 Removing "zero tolerance" was a key recommendation Littler made in its comments to the state agencies.