On October 1, 2018, New York State released final model sexual harassment materials and compliance guidance in response to comments received during its open comment period, discussed in more detail in a previous blog article. The new materials provide important guidance for future compliance and include new employer requirements, as detailed below.
The final materials provide important clarification on how the law will be enforced as well as new requirements for employers as follows:
- The new deadline for providing compliant trainings to employees is October 9, 2019. This has been changed from the previous January 1, 2019 deadline.
- New employees must now be trained “as soon as possible” but not necessarily within 30 days.
- The deadline for employers to publish compliant policies remains October 9, 2018.
- Policy and training materials must be provided in the language spoken by the employer’s employees. The State will be translating its model materials accordingly and employers who do not use the State model materials should translate their materials accordingly
- Employers should provide their compliant policy to new employees before they commence work.
- Employers should post a new Poster, available on the State’s employer webpage, in a highly visible common area in the workplace. The poster indicates where the employer’s policy and complaint form can be found as well as contact information for the individual or office responsible for receiving employee complaints.
- Employers need not train third party vendors, contractors or other non-employees, but are encouraged to post a copy of their policy in an area that will be visible to such individuals and may train such individuals.
- Complaint forms do not need to be included with employer policies so long as the employees are adequately informed of where the form can be found.
- There is no minimum number of training hours so long as the training meets or exceeds the minimum standards.
- If an individual works a portion of their time in New York State, even if they’re based in another state, they must be trained.
- Minor employees (such as child actors) must be trained.
- Hours spent in compliant trainings constitute regular work hours and should be compensated as such.
- Sections in the model training material that are not expressly required by the law are not mandatory but are recommended.
- Any non-disclosure agreement that covers sexual harassment claims or their underlying facts must be executed in two parts. The first part must acknowledge that it is the employee’s preference to enter such agreement and that the employee is being given 21 days to consider the agreement and 7 days to revoke consent after the 21-day period has expired. The second part must be executed after the 21-day period.
New York State also published the following new materials, available on the State’s employer webpage or through the State’s general informational webpage in various formats including PDF, Word and PowerPoint:
- A revised frequently asked questions guide to the sexual harassment laws
- A revised model sexual harassment prevention policy
- A sexual harassment prevention toolkit for employers
- A Sexual Harassment Poster
- A revised model complaint form
- A revised model training
- Sexual harassment prevention training case studies to supplement the model trainings
Employers should prepare to publish and distribute a compliant policy and post the new Poster by October 9, 2018. Employers should also alter their materials according to the new guidance. Fortunately, employers will have an extended period – until October 9, 2019 – to perfect and provide compliant trainings. Please review our previous blog article on this topic for an overview of the New York State laws regarding sexual harassment.