Anti-Harassment Policies and Training: What New York Employers Need to Know Now

New York State

As part of the 2018-2019 New York State Budget (“the Law”), employers within New York State are required to implement an anti-harassment policy by October 9, 2018 and implement an anti-harassment training program for employees and supervisors.

In connection with these requirements, the New York State Department of Labor (NYSDOL), in consultation with the New York State Division of Human Rights, recently released drafts of its model anti-harassment policy, complaint form, interactive training program, and FAQs (“Anti-Harassment Materials”). Employers may adopt these Anti-Harassment Materials or develop their own policies and programs, provided they comply with or exceed the minimum standards set forth in the Law for the model policy and training program. The NYSDOL accepted comments on the Anti-Harassment Materials through September 12, 2018. Final documents are expected soon.

The seven-page template policy is extensive and covers the topics required by the Law, such as:

• a statement that sexual harassment is a form of “employee misconduct”
• an explanation of sexual harassment
• specific examples of harassing conduct
• details concerning external avenues of complaints for employees (e.g., local, state, and federal anti-discrimination agencies and the local police in cases of assault)
• prohibitions against retaliation
• reporting procedures
• supervisory responsibilities
• detailed information about the investigation process (including document preservation requirements)
• a statement that action will be taken against individuals engaging in conduct in violation of the policy and against supervisors who knowingly allow such misconduct to continue

The draft policy also:

• includes a 30-day time frame for employers to complete investigations
• states that the policy covers not only employees, but also interns (including unpaid interns), contractors, and others doing business with the company
• references the employee complaint form

The draft complaint form is designed to obtain information from the complaining individual about the complaint and includes two optional questions, asking (1) whether the employee has filed any previous complaints against the employer; and (2) whether the employee had filed any charges or lawsuits regarding the complaint and, if so, was represented by counsel.

Currently, the model proposed training program consists of a script for in-person training; however, the NYSDOL will make available other training programs (i.e., a video and PowerPoint presentation), although it is not clear when these documents will be released. The training program encompasses the components of the template policy and case studies. The program also requires employers to:

• conduct annual training by January 1, 2019
• provide training to each new hire within 30 days of that individual’s hire
• provide training to temporary and transient employees
• conduct training in the language spoken by employees

Employers must also ensure that training sessions are interactive.

The DOL has also issued draft FAQs concerning the new requirements.

Since the Anti-Harassment Materials are not yet finalized, employers are under tight time constraints to implement a compliant policy by October 9 and comply with the NYSDOL’s newly proposed January 1, 2019 deadline for training. Accordingly, as these dates quickly approach, employers should start considering where to post the new policy, how to distribute it to new hires, whether to have a separate policy for New York employees (for multi-state employers), whether to use the NYSDOL materials or develop or expand on their own policies and training programs to ensure compliance with the new requirements, how to train temporary and transient employees, whether training is needed in more than one language, and whether additional training is required for those conducting investigations.

New York City

In addition to the New York State requirements, beginning on April 1, 2019, employers in New York City with more than 15 employees, including interns, will be required to conduct anti-sexual harassment training for all employees, including supervisors and managers, which, similar to the state requirements, must cover a range of legally required topics.

Under the New York City Stop Sexual Harassment in NYC Act (“NYC Act”), training is required for all employees who work more than 80 hours in a calendar year and for new employees within 90 days of hire. The training must cover a range of topics, including those required by the Law and information about bystander intervention. The training must be “interactive” and include some type of participatory teaching and trainer/trainee interaction. The NYC Act mandates that the New York City Commission on Human Rights develop an online interactive training module covering the required training topics. Employers will have the option of using this program for training purposes, provided that the employer apprises employees of any available internal complaint processes to address harassment, or employers may use their own training programs, provided such programs comply with the NYC Act’s requirements.