New York State Department of Labor Issues Model Sexual Harassment Policy and Interactive Training Documents

Employers Must Adopt New Policy by October 9, 2018 and Provide Training by January 1, 2019 September 19, 2018
SUMMARY
New York’s 2018-2019 State Budget contained several significant pieces of legislation addressing workplace sexual harassment, which we reviewed in our April 23, 2018 memorandum available here.  Under the new N.Y. Labor Law Section 201-g, all employers in New York State (regardless of size) are required to adopt anti-sexual harassment policies and training programs that meet or exceed the requirements in model documents issued by the Department of Labor.  The model documents were issued in draft form at the end of August 2018, with the Department asking for comments on the draft to be submitted by September 12.  The Department may issue revisions in the near future.  The draft model documents include: 1) a definition of “sexual harassment,” which the State Budget provisions did not provide; 2) detailed instructions to be provided to employees about filing claims in federal and state court; and 3) a pronouncement that “managers and supervisors are required to report any complaint that they receive.”  Employers must have compliant policies in place by the October 9 deadline.  With respect to the required annual interactive sexual harassment training, although the new requirement providing that employers must provide the training on an annual basis becomes effective October 9, 2018 and thus arguably can be complied with by providing training by the one-year anniversary of the effective date, the Department of Labor takes the position that employers must train all employees by January 1, 2019.
 
MODEL SEXUAL HARASSMENT POLICY
The model sexual harassment policy released by the New York State Department of Labor (the “DOL”) is available here.  The DOL’s Combating Sexual Harassment: Frequently Asked Questions (the “FAQs”), which were published alongside the model documents, take the position that employers must either give employees written copies of a compliant sexual harassment policy (to current employees on October 9 and to new employees upon hire) or provide electronic access.1 The model policy’s significant provisions are summarized here.

Definition of Sexual Harassment.  The April 2018 State Budget left the term “sexual harassment” undefined.  The model policy defines sexual harassment in a two-page section entitled “What is Sexual Harassment?” and thereafter provides examples of sexual harassment.  The model policy states:  “Sexual harassment includes harassment on the basis of sex, sexual orientation, gender identity and the status of being transgender.”  The model policy continues:  “A sexually harassing hostile work environment consists of words, signs, jokes, pranks, intimidation or physical violence which are of a sexual nature, or which are directed at an individual because of that individual’s sex.  Sexual harassment also consists of any unwanted verbal or physical advances, sexually explicit derogatory statements or sexually discriminatory remarks made by someone which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, [or] which interfere with the recipient’s job performance.”  Significantly, the model policy provides as examples of sexual harassment “bullying, yelling, [and] name-calling.”

Definition of Retaliation.  The model policy then defines unlawful retaliation as “any action that would keep a worker from coming forward to make or support a sexual harassment claim.  Adverse action need not be job-related or occur in the workplace to constitute unlawful retaliation.”  This definition is largely consistent with the New York City Human Rights Law, but is more expansive than courts’ interpretation of the New York State Human Rights Law.

“Supervisory Responsibilities.”  The model policy adopts a strict liability posture with respect to complaints of harassment, with no exceptions for complaints believed by the employer to be made in bad faith, for example.  It states:  “All supervisors and managers who receive a complaint or information about suspected sexual harassment, observe what may be sexually harassing behavior or for any reason suspect that sexual harassment is occurring, are required to report such suspected sexual harassment to [person or office designated].”

Complaint and Investigation Procedure.  A compliant policy must include a complaint form that employees can use to report sexual harassment.  The DOL model complaint form is available here.  The model policy includes a section entitled “Complaint and Investigation of Sexual Harassment,” which provides a detailed investigation protocol stating that “all complaints or information about suspected sexual harassment will be investigated” and “should be completed within 30 days.”

“Legal Protections and External Remedies.”  The model policy concludes with a section that describes the avenues for employees to pursue legal remedies with the New York State Division of Human Rights, the Equal Employment Opportunity Commission, local agencies and the police.

Minimum Standards for Employer Policies.  The DOL separately released a document entitled “Minimum Standards for Sexual Harassment Prevention Policies,” available here, to instruct employers that wish to use their own sexual harassment policies, rather than the model policy, as to the minimum standards required.
 
MODEL SEXUAL HARASSMENT PREVENTION TRAINING PROGRAM
The model training, available here, is a script for an in-person group training that includes several “case studies” of sexual harassment with questions to prompt discussion, followed by answers provided by the DOL.  (The script document states that other available training elements include a “PowerPoint, a video presentation and FAQs,” but those do not appear to have been made available yet.)

“Interactive” Requirement.  Labor Law Section 201-g requires that the model training program be “interactive.”  The DOL’s model training defines that to mean that the training “requires some level of participation by those being trained.  The training should include as many of the following elements as possible:  be web-based, with questions asked of employees as part of the program; accommodate questions asked by employees; include a live trainer made available during the session to answer questions; and require feedback from employees about the training and the materials presented.”

Deadlines for Completion of Training.  The model training states that “all employees should complete sexual harassment prevention training before January 1, 2019.”  Going forward, “all employees must complete an additional training at least once per year.  This may be based on calendar year, anniversary of each employee’s start date or any other date the employer chooses.”  And “all new employees should complete sexual harassment prevention training within 30 calendar days of their start date.”  The DOL’s FAQs state that “[e]mployers are required to ensure that all employees receive training,” including part-time, as well as “temporary [and] transient employees” who only “work[] for one day for the employer” or “work[] for just one day” in New York.

“Instructions for Employers.”  The model training provides that “if specific employer policies or practices differ from the content in this training, the training should be modified to reflect those nuances, while still including all of the minimum elements required by New York state law.”  Further, the “training should detail any internal process employees are encouraged to use to complain and include the contact information for the specific name(s) and office(s) with which employees alleging harassment should file their complaints.”  The DOL suggests that the training “be modified to reflect the work of the organization by including, for example, industry specific scenarios.”  Finally, the DOL recommends that “to every extent possible, training should be given consistently across each organization’s workforce to ensure understanding at every level and at every location.”

Minimum Standards for Employer Training.  The DOL separately released a document entitled “Minimum Standards for Sexual Harassment Prevention Training,” available here, to instruct employers that wish to use their own sexual harassment training program as to the minimum standards required.  The DOL’s minimum standards are that the training must:  “be interactive; include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights; include examples of unlawful sexual harassment; include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment; include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and include information addressing conduct by supervisors and additional responsibilities for supervisors.”
 
IMPLICATIONS
Much remains to be determined with respect to the finalized documents and when employers will be expected to implement them.
The FAQs that accompanied the model documents solicited the public’s comments by September 12; the model policy and training documents themselves were watermarked as “DRAFTS.”  As of the publication date of this memorandum, the DOL has provided no additional guidance as to when final-form documents will be issued and whether employers will be expected to adhere to the timetable in the draft documents. The DOL’s website simply states:  “The state has received hundreds of very constructive and substantive comments from a wide range of individuals, advocates, industries, worker groups, businesses and business organizations. The comments are being reviewed and necessary revisions being considered, with finalized documents expected to be released in the near future.”  Given that the effective date of the relevant provisions in the State Budget is October 9, 2018, it seems reasonable to expect that the final documents will be issued very soon.

New York State courts may not endorse the interpretation of New York Labor Law 201-g embodied in the DOL’s FAQs and draft documents.
Labor Law Section 201-g directs the DOL to “create and publish a model sexual harassment prevention guidance document and sexual harassment prevention policy” and “produce a model sexual harassment prevention training program.”  Some of the positions the DOL has taken in the draft documents would appear to go beyond the intended scope of the new statute.  For example:  (i) in the FAQs, employers are required to provide sexual harassment training to “temporary [and] transient employees” who only “work[] for one day for the employer” or “work[] for just one day” in New York; (ii) in the FAQs, an employer is required to inform an “independent contractor” who performs most of his or her work off the premises of the business of the employer’s sexual harassment policy; (iii) in the model policy, supervisors “are required to report any harassment that is reported to them or which they observe,” regardless of severity or genuineness of the complaint; and (iv) in the model policy and model training, employers are required to provide detailed instructions to employees for how to file complaints with state and federal authorities.  As noted above, the final documents may modify some of these positions.  And, the FAQs do not carry the force of law.  That said, the draft documents represent the current views of the DOL and bear consideration by employers in their preparations for the effectiveness of the new law.

Employers also should be aware of parallel New York City requirements.
On May 9, 2018, Mayor DeBlasio signed into law 11 bills related to sexual harassment, collectively titled the Stop Sexual Harassment in New York City Act.  Among other things, the Act extends the statute of limitations for gender-based harassment under the New York City Human Rights Law from one year to three years.  Effective September 6, 2018, New York City employers must provide new hires with anti-harassment handouts and display an Anti-Sexual Harassment Rights and Responsibilities poster.  The City has made the handout and poster available here (handout) and here (poster).  The Act also imposes an interactive anti-harassment training requirement on employers with 15 or more employees that takes effect April 1, 2019.  The website of the City Commission on Human Rights states:  “Effective April 2019, employers have one year to implement the training for all employees and must ensure all employees are trained annually thereafter. The Commission will develop and share an online training to be available on its website that will satisfy this requirement in the coming months. Employers may also choose to provide their own annual anti-sexual harassment training for employees provided that it includes the following elements:  An explanation of sexual harassment as a form of unlawful discrimination under local law; A statement that sexual harassment is also a form of unlawful discrimination under state and federal law; A description of what sexual harassment is, using examples; Any internal complaint process available to employees through their employer to address sexual harassment claims; The complaint process available through the Commission, the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission, including contact information; The prohibition of retaliation including examples; Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention; and The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.”2

ENDNOTES
  1. New York State Dep’t of Labor, Combating Sexual Harassment: Frequently Asked Questions, available at https://www.ny.gov/combating-sexual-harassment-workplace/combating-sexual-harassment-frequently-asked-questions#for-employers.
  2. New York City Human Rights, Sexual Harassment in the Workplace, available at https://www1.nyc.gov/site/cchr/media/sexual-harassment-campaign.page.
The content of this blog post was originally distributed on September 19 as an S&C Publication.