New York State Issues Final Guidance on Sexual Harassment Prevention

The New York State Department of Labor and State Division of Human Rights have issued final guidance for the state’s employer policies for workplace harassment that require every employer in the New York State to adopt a sexual harassment prevention policy.

As part of the state’s budget bill, which was signed into law in April, several amendments to the New York Human Rights Law (NYHRL) were approved. One of the most significant changes was mandating that New York employers with four or more employees adopt sexual harassment policies and provide mandatory sexual harassment training to all employees and supervisory personnel. Those changes when into effect in October.

The sexual harassment policies and training by employers must be consistent with a model policy and model training prepared jointly by the Commissioner of Labor and the New York State Human Rights Division.

The final guidance includes materials that employers should reference when complying with the state policies, including model complaint forms, model training guides, and frequently asked questions. Employers that do not adopt the model policy provided by the state must ensure that the policy that they do adopt meets or exceeds the following minimum standards:

• Prohibit sexual harassment consistent with the guidance documents issued by the state DOL and provide examples of prohibited conduct
• Clearly state that sexual harassment is a form of employee misconduct, as is supervisory or managerial personnel knowingly allowing such behavior to continue;
• Clearly state that sanctions will be imposed against individuals who engage in sexual harassment or supervisors who knowingly permit such harassment
• Clearly state that retaliation against individuals who complain about, or who cooperate in an investigation or proceeding regarding, sexual harassment is prohibited and unlawful
• Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties
• Include a complaint form
• Include information about any applicable federal or state statutes concerning sexual harassment and any remedies those statutes provide
• Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints

The final guidance states that all employees in the state of New York must receive sexual harassment training by October 9, 2019. New hires must be trained “as soon as possible.” The minimum requirements for training on sexual harassment prevention must include an explanation of sexual harassment consistent with the guidance documents issued by the state DOL and provide examples of prohibited conduct. The training must also include:

• Information about any applicable federal or state statutes concerning sexual harassment and any remedies those statutes provide
• Informing employees of their rights of redress and all available forums for adjudicating sexual harassment complaints
• Information addressing conduct by supervisors and any additional responsibilities for supervisors.

Employers must provide each employee with a copy of its sexual harassment policy in writing. Employers should provide employees with the policy in the language spoken by their employees.

New York State’s actions on sexual harassment are consistent with a growing mood in the country to aggressively address sexual harassment, sparked by the #MeToo and #TimesUp movements. The state joins California, Connecticut, Delaware and Maine as the only states that require employers to conduct sexual harassment training.

On the federal level, the EEOC also has made sexual harassment a focus of its enforcement activities.

Failing to comply with state and federal regulations on sexual harassment could pose financial risk and negative PR for employers. Organizations with operations in the states of New York, California, Connecticut, Delaware and Maine should review their internal processes to ensure they are complying with all sexual harassment regulations.

Employers in other states that do not require sexual harassment training should review their practices in this area and consider developing sexual harassment policies and to provide training, even if not required. Such training can help prevent workplace harassment and be part of a defense against lawsuits.

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