New York State Issues Draft Model Sexual Harassment Policy, Complaint Form, and Training Materials

As we previously reported in our "New York Enacts Sweeping Sexual Harassment Legislation" series, New York State enacted new sexual harassment legislation in April 2018 that will affect how employers train and educate their workforces, whether and how employers settle claims of sexual harassment, and the terms and conditions of a person's employment. Since then, employers throughout New York State have anxiously awaited the publication of the Model Sexual Harassment Policy, Model Complaint Form, and Model Sexual Harassment Training Program from the NYS Division of Human Rights and the NYS Department of Labor.

On August 23, 2018, these documents were published in draft form on the NYS government's "Combating Sexual Harassment in the Workplace" webpage, which also includes an FAQ section.

The State has encouraged the public, employers, and employees to provide comments on these documents by September 12, 2018.

Highlights of the recently published documents include the following:

• Although the new legislation's policy and training requirements become effective on October 9, 2018, the statute failed to advise when the annual training would be required. However, the draft FAQs address this issue and specify that employers must conduct the required training by January 1, 2019, with annual follow-up training thereafter, whether based on the calendar year, the anniversary of each employee's start date, or any other date the employer chooses.
• For new employees starting after January 1, 2019, employers must provide sexual harassment training within 30 calendar days of starting their jobs.
• The draft FAQs also provide additional guidance on the new legislation's requirement that sexual harassment training be "interactive," that is, contain "some form of employee participation," which means the training should include 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 materials presented
• Employers must implement the State's new model policy or policy language that meets or exceeds the model policy by October 9, 2018.

Next Steps

The State's newly published documents contain a significant amount of material. We anticipate that the significant obligations imposed by this legislation will be subject to significant criticism and comments by employers throughout New York State. We will keep you all posted regarding any developments and are available to answer any questions you have, assist in implementing new sexual harassment policies, and conduct employee training, as required.