On October 1, 2018, New York state updated the sexual harassment prevention guidance and model documents it has made available online. The state had issued draft documents in August and had requested public comments. Here are some of the key differences in the final documents:
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The deadline for employers to complete the initial sexual harassment prevention training has been extended to October 9, 2019 (was January 1, 2019).
Employers are encouraged to provide training to new employees “as quickly as possible” rather than within 30 days of hire as stated in the draft guidance.
References to “zero tolerance” have been removed from the model policy and training. The term “victim” was replaced with “target” throughout the materials.
For purposes of training, an “employee” includes part-time, seasonal, and temporary workers. It also includes all workers, regardless of immigration status.
Only employees who work or will work in the state need to be trained. Employees who are based in another state but work in New York for a portion of the time must receive training.
The 30-day time frame for completing a harassment investigation was replaced with language indicating that investigations will be “commenced immediately and completed as soon as possible.” The language referencing the steps an employer will follow when investigating a complaint has been relaxed, noting that “the process may vary from case to case.”
Employers must adopt and provide a sexual harassment prevention policy to all employees by October 9, 2018. The policy may be distributed in writing or electronically. Employers are encouraged to have employees acknowledge receipt of the policy and to post a copy where employees can easily access it. New employees should receive the policy before starting work.
The model training clarifies the definition of “sexual harassment,” aligning it with applicable legal standards. It also encourages bystander intervention when an employee is uncomfortable about harassment he or she is witnessing.
Other changes include the following:
- Employers are not required to provide any policy to nonemployees but are encouraged to give a copy of their sexual harassment prevention policy and training to anyone providing services in the workplace.
- The definition of sexual harassment now includes “self-identified or perceived sex” along with sex, sexual orientation, gender expression, gender identity and the status of being transgender. Sex stereotyping is now included in the examples of sexual harassment.
- The section on retaliation includes additional language on protection when a person has a “good faith belief” that reported harassment was unlawful. It also states that the retaliation provision is not intended to protect those making intentionally false charges of harassment.
BLR will continue to provide updates on the new sexual harassment prevention laws in the state of New York.