10-16-2018
Governor Andrew Cuomo has enacted new anti-sexual harassment requirements that will apply to a broad range of employers. Every employer in New York must have a sexual harassment prevention policy. The New York State Department of Labor (NYDOL) has a model policy reflecting the requirements that must be met by New York employers.
These requirements include:
- Removing “zero tolerance” from anti-harassment policies as the Equal Employment Opportunity Commission (EEOC) believes that phrase may deter employees from making complaints
- Sexual harassment must be defined to include harassment on the basis of “self-identified or perceived sex”
- Notifying employees that investigations will be kept confidential to the extent possible
- Advising employees that an investigation must be “prompt and thorough, commenced immediately and completed as soon as possible”
- Include a section describing an employee’s legal remedies and right to file charges with the Department of Human Rights, the EEOC, and the New York City Commission on Human Rights as well as seek recourse from law enforcement or a private attorney
- Have a written complaint
form either included or with clear directions on how to obtain one. Employees are not required to disclose if they have filed charges of discrimination on the form - Investigations need not be exactly the same as the state’s model policy provided they are similar
All employers must provide annual sexual harassment prevention training to their employees with the first one completed by October 9, 2019. While part-time, temporary, and seasonal employees are all included, employees who do not work at all in the state are excluded. New employees should be trained “as quickly as possible.” Training programs should meet the minimum standards set forth by the state and include at a minimum the expressly required sections. Training must be interactive so that employees participate in some way such as answering questions or providing feedback. The training should also inform employees about the additional responsibilities of supervisors regarding sexual harassment. Employees should also be made aware of the federal and state provisions regarding sexual harassment.
Copies of the new anti-harassment policies must be made readily available to employees in writing or electronically, with employees able to print out electronic copies. While the New York State Human Rights Law does extend protections beyond employees, they need not receive a copy of the policy or be trained. Employers are encouraged to keep signed acknowledgments of receipt of the policy. Mandatory arbitrations clauses and non-disclosure agreements will also now be curtailed.
As the new laws contain a large number of new obligations and prohibitions, the above is intended to highlight some of the parameters. Employers are urged to review the full provisions carefully and/or consult with legal counsel.