Insights / Employment Advisor
New York State Gives Employers a Welcome Reprieve with Regard to Certain Deadlines in its Harassment Prevention Legislation
By Scott M. Cooper, Kaitlyn E. Fallon, Michael Goettig, Laura Sack, Roy P. Salins, and Lyle S. Zuckerman
10.02.18
On October 1, 2018, the New York Governor’s office released updated (and, in some cases, new) materials and guidance addressing employers’ obligations under the New York State law designed to prevent sexual harassment in the workplace. These materials contain several important changes from the draft materials published on August 23, 2018. The newly-released materials contain a welcome deadline extension and significant clarifications regarding employers’ obligations under the new laws.
First, to the surprise of many, the State’s August 23, 2018 draft materials had suggested that all employers would be required to provide sexual harassment training to all of their employees in New York State before January 1, 2019. In the final iteration of these materials published on October 1, the State announced that the deadline by which all employees in New York State must complete their first annual mandatory anti-harassment training is October 9, 2019.
Another departure from the State’s August 23, 2018 draft materials relates to the proposed 30-day deadline by which newly-hired employees must complete their first mandatory anti-harassment training. Under the October 1 final guidance, no such deadline appears; instead, the State now “encourages training of [of new hires] as soon as possible.” Employer Guidance, “Training,” Question 3. Also, according to the State, employers should distribute their anti-harassment policy to newly-hired employees before they commence work (and are encouraged – but not required – to post notice of their policy in the workplace). (Note, however, that under recently-enacted New York City legislation, employers will be required to train new hires in New York City within the first 90 days of employment and display an informational poster in the workplace.)
The October 1 guidance also clarifies the definition of “employee” for the purposes of the training requirement. For this purpose, “‘employee’ includes all workers, regardless of immigration status. ‘Employee’ also includes exempt or non-exempt employees, part-time workers, seasonal workers, and temporary workers.” Employer Guidance, “Training,” Question 1.
Both the anti-harassment training and the employer’s anti-harassment policy should be provided to employees in their primary languages. “As quickly as possible,” the State will translate its model policy and model training materials into Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. If the State does not provide templates in an employee’s primary language, the employer may provide an English-language version of its policy and training materials.
The October 1 guidance contains an updated State model complaint form, an updated model sex harassment prevention policy, model training materials (including presentation slides, an updated script, and case studies), and a sex harassment prevention toolkit. A training video is forthcoming. Employers are under no duty to use these model training materials, as long as the materials they use satisfy the minimum standards for training. Employer Guidance, “Training,” Question 15.
The State’s updated guidance makes clear that employers “do not have to provide any policy [against sex harassment] to independent contractors, vendors or consultants as such individuals are not employees of the employer.” That being said, employers can still be held liable for the actions of such third parties, so the State nonetheless encourages employers to provide the policy and the training to “anyone providing services in the workplace,” and to post notice of the policy in a “highly visible” location in the workplace. Employer Guidance, “Policy,” Question 4.
The State has indicated that it will be offering training sessions for employers regarding the new harassment prevention requirements imposed by New York law, with dates for that training to be announced on its website.
For more information, employers are also invited to listen to the audio transcript of DWT’s September 13, 2018 webinar and to consult our prior advisory, both of which include discussion of other aspects of the new legislation (e.g., nondisclosure agreements and mandatory pre-dispute arbitration agreements).
First, to the surprise of many, the State’s August 23, 2018 draft materials had suggested that all employers would be required to provide sexual harassment training to all of their employees in New York State before January 1, 2019. In the final iteration of these materials published on October 1, the State announced that the deadline by which all employees in New York State must complete their first annual mandatory anti-harassment training is October 9, 2019.
Another departure from the State’s August 23, 2018 draft materials relates to the proposed 30-day deadline by which newly-hired employees must complete their first mandatory anti-harassment training. Under the October 1 final guidance, no such deadline appears; instead, the State now “encourages training of [of new hires] as soon as possible.” Employer Guidance, “Training,” Question 3. Also, according to the State, employers should distribute their anti-harassment policy to newly-hired employees before they commence work (and are encouraged – but not required – to post notice of their policy in the workplace). (Note, however, that under recently-enacted New York City legislation, employers will be required to train new hires in New York City within the first 90 days of employment and display an informational poster in the workplace.)
The October 1 guidance also clarifies the definition of “employee” for the purposes of the training requirement. For this purpose, “‘employee’ includes all workers, regardless of immigration status. ‘Employee’ also includes exempt or non-exempt employees, part-time workers, seasonal workers, and temporary workers.” Employer Guidance, “Training,” Question 1.
Both the anti-harassment training and the employer’s anti-harassment policy should be provided to employees in their primary languages. “As quickly as possible,” the State will translate its model policy and model training materials into Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. If the State does not provide templates in an employee’s primary language, the employer may provide an English-language version of its policy and training materials.
The October 1 guidance contains an updated State model complaint form, an updated model sex harassment prevention policy, model training materials (including presentation slides, an updated script, and case studies), and a sex harassment prevention toolkit. A training video is forthcoming. Employers are under no duty to use these model training materials, as long as the materials they use satisfy the minimum standards for training. Employer Guidance, “Training,” Question 15.
The State’s updated guidance makes clear that employers “do not have to provide any policy [against sex harassment] to independent contractors, vendors or consultants as such individuals are not employees of the employer.” That being said, employers can still be held liable for the actions of such third parties, so the State nonetheless encourages employers to provide the policy and the training to “anyone providing services in the workplace,” and to post notice of the policy in a “highly visible” location in the workplace. Employer Guidance, “Policy,” Question 4.
The State has indicated that it will be offering training sessions for employers regarding the new harassment prevention requirements imposed by New York law, with dates for that training to be announced on its website.
DWT Counseling and Assistance Regarding Compliance
DWT attorneys are available to help employers take appropriate steps to comply with New York’s rigorous new requirements pertaining to the prevention of sexual harassment.For more information, employers are also invited to listen to the audio transcript of DWT’s September 13, 2018 webinar and to consult our prior advisory, both of which include discussion of other aspects of the new legislation (e.g., nondisclosure agreements and mandatory pre-dispute arbitration agreements).