NY: Draft model sexual harassment policy/training released

August 31st, 2018
Frank Kerbein at The Business Council of New York State, Inc.

Draft Model of Sexual Harassment Policy/Training Released by the Department of Labor - Division of Human Rights

This afternoon, the NYS Department of Labor and Division of Human Rights released the long awaited model sexual harassment policy, complaint form, and model sexual harassment training program, which were mandated by statutory changes included in the state budget adopted in March 2018.  These documents are available in draft form and can be found here.  Please note the sexual harassment prevention policy and complaint form are draft documents. Employers are encouraged to provide comments on the proposed policies. Comments can be submitted on or before September 12, 2018. 

The Business Council has identified several areas of concern for employers and will be submitting comments and working with the Department and the Division to mitigate provisions we feel are unworkable or onerous.   We welcome your comments and questions as we review these drafts and prepare our formal comments for the record.

A quick review of each:

Model Sexual Harassment Policy

Every employer in the State of New York is required to adopt a sexual harassment prevention policy pursuant to new Section 201-g of the Labor Law. An employer that does not adopt the state’s model policy must ensure that the policy that they adopt meets or exceeds the minimum standards in the model policy. 

Key features of the state’s draft model policy:

  • It is a strong policy indicating that each employer will have “zero-tolerance” for any form of sexual harassment. Notably absent are terms generally used in current policies – “unwelcome,” “severe,” and “pervasive;”
  • Definition of harassment and the examples given in the draft policy are consistent with current best practices;
  • Makes clear the New York law protects not just employees, but paid/unpaid interns, non-employees, independent contractors, vendors, clients, customers, and visitors. Includes requirement that supervisors and managers report sexual harassment;
  • Includes a detailed complaint procedure – including a mandate to use a Complaint Form; Requires that “all complaints” be thoroughly investigated within 30 days of receipt, and that perpetrators will be subject to remedial and/or disciplinary actions up to and including termination.
  • Talks in great detail about external remedies available to employees (the NYS Division of Human Rights, EEOC, police and other local authorities)

Model Sexual Harassment Training:

Every employer in the State of New York is required to provide employees with sexual harassment prevention training pursuant to Section 201-g of the Labor Law. An employer that does not use the model training developed by the State Department of Labor and Division of Human Rights must ensure that the training that they use meets or exceeds the minimum standards in the model training program.

Key provisions of the proposed model training requirements include:

  • All employees should complete sexual harassment prevention training before January 1, 2019;
  • All employee must complete training at least once per year (calendar year, anniversary date, or other employer defined date);
  • All new employees should complete training within 30 calendar days of their start date.
  • Training should be provided in the language spoken by the employees;
  • Training must be interactive and including as many of the following elements as possible:
    • Be web-based with questions asked of employees as part of the program;
    • Accommodate questions asked by employees;
    • Include a live trainer made available during the session to answer questions;
    • Require feedback from employees about the training and the materials presented.

The Combating Sexual Harassment in the Workplace website contains additional information you will find helpful including a FAQ section for employees and employers and information on the restrictions relating to mandatory arbitration provisions and non-disclosure agreements.

As we conduct a more thorough review, we will be providing additional information. And once developed, we will share our comments with our members. In addition, our first webinar of the fall session will be focused on these policies/training programs and related concerns.

Please feel free to share with me your issues, concerns, and comments regarding this topic. You can reach me at 800.332-2117 or at frank.kerbein@bcnys.org.