New York State Department of Labor Releases Draft Materials on Combating Sexual Harassment in the Workplace
Learn more about Mariana Strategies' New York workplace harassment trainings.
New York State's Department of Labor has issued draft versions of a model policy, model training, complaint form, and FAQs for comment as new harassment prevention laws take effect in the coming months. (Some have already come into place, as described here.) Below are some of the key issues for employers to be aware of.
UPDATED: October 2, 2018.
The Training Requirement:
Effective October 9, 2018, every employer in New York State is required to provide employees with sexual harassment prevention training, whether the model training developed by the New York State Department of Labor (NYS DOL) and Division of Human Rights, or another one that meets or exceeds the minimum standards. The training will have to be interactive, though that doesn't necessarily mean in person. Currently, NYS DOL has provided a draft script and slide deck for the training, but not an online training that would meet its requirements for interactivity. Businesses will likely provide training in house or seek out experts in training on harassment. And, while New York State does not have a record keeping requirement for employers to show who has attended trainings, it is advisable to keep a record of attendees.
Employers will have until October 9, 2019 to train all of their employees. This includes part time, full time, temporary, and transient employees (employees who only work in New York occasionally). Employers should start preparing now to ensure they are ready to meet the training requirements, whether by preparing their own training materials or retaining outside expertise to deliver trainings to their employees.
Employers will need to have the training delivered annually after the first year, and must ensure that new employees are trained promptly after beginning employment.
The Policy and Complaint Form
Effective October 9, 2018, every employer in the New York State will have to adopt a sexual harassment prevention policy, whether it's the model policy, or one that meets or exceeds the new minimum standards. Employers will have to provide every employee with a written copy. Note that the policy needs to be provided in the language spoken by employees.
Alongside the updated or adopted policy, employers will need to include a complaint form for individuals who want to report sexual harassment. Generally, sexual harassment prohibitions are included as part of a robust policy prohibiting harassment on the basis of all legally protected categories; a complaint form will offer the opportunity to report harassment on the basis of any of the protected categories, not just one. While employers are only required to make these updates with respect to sexual harassment, there is a strong case to be made for incorporating all protected categories into the harassment policy and complaint form update.
Note also that these materials likely reside in an employee handbook. Employers may, but are not required to, provide the policy to non-employees who are covered by the policy, including interns, whether paid or unpaid, contractors and persons conducting business with the employer, employers will want to have a version of the policy to give to non-employees, rather than providing the employee handbook. Additionally, employers may want to collect a signed acknowledgement of the policy, whether from employees who receive the handbook, and non-employees who receive the breakout version of the policy.
Be aware that the new law also requires employers to articulate their procedures for investigations. This means that everyone responsible for receiving complaints must be trained on how to handle them and those responsible for investigating claims must know how to conduct interviews, collect and preserve documents, and create a written report at the conclusion of the investigation. Be sure that your internal investigation procedures are at least as robust as the models and that you take action to ensure your procedures are in place for when you need them. For instance, determining who is responsible for conducting investigations, particularly if yours is a small business, is a decision that should be made in advance, to allow for flexibility in resource allocation when you need to pull a staff member off of other work in order to conduct an investigation. It's never a project that you've planned for in advance.
The New York State requirements for training, policies and forms only address sexual harassment, but businesses can be liable for unlawful workplace harassment based on race, color, national origin, sexual orientation, gender identity, age, religion, disability, and other categories under federal, state and local law. It is worth your time to make sure your policies, trainings, and forms address all forms of unlawful workplace harassment and that you work with a consultant or law firm that can address the full range of harassment liability issues.
Meeting the new requirements of both New York City and State is an important consideration. New York City's new training requirements come into effect in April 2019. We know already that NYC's requirements for training will include bystander intervention, which is not a part of the New York State training requirements, and that NYC employers will need to keep records of attendance for trainings, something not required outside of NYC. If you work with a consultant or law firm to meet these requirements, make sure they're following both the New York State and City requirements.
The legislature aims to create workplaces where harassment is not tolerated, but it is not possible to create workplace culture by legislative fiat. As the EEOC points out, employers need to create the systems that hold employees accountable. "These accountability systems must ensure that those who engage in harassment are held responsible in a meaningful, appropriate, and proportional manner, and that those whose job it is to prevent or respond to harassment, directly or indirectly, are rewarded for doing that job well, or penalized for failing to do so."
Mariana Strategies can help you comply with the new requirements and go further to create a culture of inclusion, free of harassment. Contact us.