As reported in our recent client alert, Employer Action Required: New Posting Requirements in NYC for Anti-Sexual Harassment Act, the New York Human Rights Law will require all New York employers to provide all employees with a sexual harassment policy by October 9, 2018. Under the New York Labor Law, such policy must also include a complaint form.
In addition, by January 1, 2019 employers must also train all of their employees using a program that meets the minimum standards promulgated by the State Division of Human Rights (SDHR). After January 1, 2019, all newly hired employees must complete sexual harassment training within 30 calendar days of starting their job. Prior to yesterday, the SDHR has not issued any guidance as to how to implement these new requirements. Yesterday, that changed.
The State's Draft Proposals
The SDHR has now released its draft model sexual harassment policy, model employer complaint form, and sexual harassment training requirements. Click here to view the draft policies and requirements. The public, employers and employees are encouraged to submit comments regarding these drafts on or before September 12, 2018.
Unfortunately, significant aspects of the SDHR's model policies are drafted in a manner that is likely to increase the filing of charges and complaints against employers rather than preventing and remedying sexual harassment in the workplace on a voluntary basis. The model policies will also dilute long-recognized employer's rights concerning at-will employees.
The Model Sexual Harassment Policy
Consistent with policies already in use by many employers, sexual harassment policies must prohibit sexual harassment, provide examples of prohibited conduct, include an investigation procedure and state that retaliation is prohibited. However, the State's draft policy goes much further. According to the SDHR draft policy, the policy must:
include information concerning federal and state statutory provisions, remedies available and a statement that there may be local laws covering sexual harassment;
include a procedure for timely confidential investigation of complaints that ensures due process for all parties;
inform employees of all rights of redress and available forums for adjudicating administrative and judicial complaints of sexual harassment;
state that sexual harassment is a form of misconduct that will be enforced against supervisors and managers who allow it to continue; and
apply to non-employees including interns, independent contractors and vendors.
Oral and written complaints of sexual harassment must be accepted. The complainant and anyone who responded must be advised of the final determination.
Significantly, the model policy also advises employees that if the harassment involves physical touching, coerced physical confinement or coerced sex acts, the conduct may constitute a crime and they should contact their local police department.
The Draft Model Complaint Form
Unsurprisingly, the model complaint form includes spaces to provide the name and position of the person whom the employee is complaining against, contact information for witnesses and a description of the incident in issue. More troubling, however, the model form also asks employees to check boxes as to whether the employee has filed a complaint with a federal, state or local government agency, stating, "have you instituted a legal suit or court action regarding this complaint?" and "have you hired an attorney with respect to this complaint?"
The draft model training requirements necessitate an explanation of sexual harassment consistent with guidance from the Department of Labor and State Division of Human Rights. Training must include examples of conduct that could constitute sexual harassment. However, some of the training requirements will be difficult and expensive for certain employers to implement.
Model requirements require "interactive training." Such requirement would be particularly burdensome and impractical for staffing companies placing a large number of employees or employers with a number of work sites in geographically diverse locations and high employee turnover. Further, the training must include information concerning federal and state statutory provisions, remedies available and rights of redress. Training must also be provided regarding all available forums for adjudicating complaints.
Draft Model Training Outline
The training model states that training should include as many of the following as possible:
Web-based with questions asked of employees as part of the program;
Accommodate questions asked by employees including a live trainer during training to answer employee questions;
Require feedback about the training and training materials; and
Model training scenarios.
The Other Shoe to Drop
While the draft models and requirements promulgated by the SDHR focus on compliance with the State Humans Rights Law, for employers in New York City, the New York City Commission on Human Rights (NYCCHR) is also requiring training be conducted beginning on April 1, 2019 for all employers with 15+ employees. At present, it is unclear whether the NYCCHR would accept training complying with the SDHR requirements as sufficient under the New York City Human Rights law's broader statutory mandate.