Home » New York Management Law Blog

New York Model Sexual Harassment Policy Training

Update: New York’s Model Sexual Harassment Policy & Training Program

In late August 2018, New York State issued initial guidance on the new requirements that all employers issue a written sexual harassment policy and provide annual training to every employee. On October 1, 2018, the State published updated guidance, including a revised model sexual harassment policy and training program. Here’s a quick look at the most significant changes from the State.

For more detailed analysis, check out our free webinar on this topic.

Deadlines

There is no change in the deadline for all New York employers to issue a written sexual harassment policy to all employees. Every employer with at least one employee in New York State must do so by October 9, 2018.

However, the State has substantially altered the deadline to complete the first annual sexual harassment prevention training for all employees. Initially, the State indicated that every employer must complete this training by January 1, 2019. It is likely that many employers and business groups told the State that this deadline was impractical, especially with some industries (e.g., retail) experiencing their highest business volume at year end.

Now, employers are not required to complete the first round of training until October 9, 2019. That allows a full year from the effective date of the new law. Naturally, this removes much of the urgency. But employers should not wait too long to determine how they will satisfy the training requirement.

Also, the State previously suggested that employers must train new employees within 30 days of hire. Probably because the new law does not require anything other than annual training, the State has dropped this parameter. The updated guidance only encourages employers to train new employees as soon as possible. This makes sense, of course, as the goal of the training should be to prevent sexual harassment, including by or against new employees.

Changes to the Model Sexual Harassment Policy

Overall, in my opinion, the revised model sexual harassment policy is better than the initial draft. The State considered many comments from employee and employer constituents toward improving the policy. Here are just some of the changes.

The policy no longer purports to be a “zero tolerance” policy. As I have explained before, “zero tolerance” anti-harassment policies are a good idea. However, problems can arise when it is not clear what “zero tolerance” means. Rather than attempt to clarify the potential confusion, the model sexual harassment policy now eliminates the concept.

The State has also expanded the description of sexual harassment to include harassment based on “self-identified or perceived sex” and “gender expression.”  Previously, the policy only specifically referenced harassment based on sex, sexual orientation, gender identity, and the status of being transgender.

Regarding investigations of sexual harassment complaints, the model policy now indicates that the investigation will be completed “as soon as possible” rather than “within 30 days.” This section also now acknowledges that the steps in an investigation “may vary from case to case.”

In addition, the examples of sexual harassment were modified to include kissing and hugging along with “sex stereotyping.” And the policy now clarifies that its “retaliation provision is not intended to protect persons making intentionally false charges of harassment.”

The New York State Model Sexual Harassment Policy and related forms and guidance are available here.

Changes to the Model Complaint Form

In addition to the model policy, the State updated its model sexual harassment complaint form.

The new complaint form is more streamlined than the original. It eliminates two types of problematic questions from the initial draft. The form no longer asks the complainant to include their home contact information. And it no longer asks the complainant to identify whether they have filed a legal complaint or hired an attorney related to the situation. Instead, the new complaint form concludes with the option to identify their legal counsel if the complainant would like the employer to “work with them.”

Like the model policy, employers don’t have to use the model complaint form. However, the law does require that every employer have a sexual harassment complaint form available for employees to use.

Should Employers Adopt New York’s Model Sexual Harassment Policy?

Let’s face facts. Many employers will use the model policy, along with the model complaint form. But, ideally, your organization would probably be better off with a customized policy.

The model policy has some things going for it. First, it’s guaranteed to satisfy the new State law. Second, it’s cheap and easy. Just download and insert the company name, and you have a policy.

But, there are some downfalls to the model policy. First, it wasn’t prepared with your workforce specifically in mind. It’s a one-size-fits-all policy. Even the State acknowledges the wisdom of tailoring the policy to your industry, for example. Second, it may not fit with your other existing policies. Although the law doesn’t require it, employers should also have policies regarding other forms of harassment (e.g., based on race, age, etc.). Is that policy consistent with the State’s model sexual harassment policy?

If you have the resources, consider doing more than simply handing out the model policy to every employee. Or, if time is a problem, an employer could start with the model policy to stay compliant as of October 9th and follow up later with a revised policy that better serves its purposes. Remember, of course, that beyond satisfying the New York policy requirement, the ultimate goal is to prevent sexual harassment effectively.

 

For more updates on this and other topics of interest to New York employers, sign up for the Horton Law email newsletter.

Laborers Section 75 New York Labor Class

Laborers in New York Get Discipline Protection

As of September 7, 2018, New York’s Civil Service Law now extends disciplinary protections to public employees in the labor class. On that date, Governor Cuomo signed off on an amendment to Civil Service Law Section 75, which has long established procedures for disciplining many governmental employees in the State. Before this recent amendment, most laborers were excluded.

What Is the Labor Class?

According to the Civil Service Law, the labor class includes all unskilled laborers employed by governmental employers within the state. It does not include positions for which a competitive examination is available.

Which Civil Service Employees Does Section 75 Cover?

Before the amendment, Section 75 covered the following members of the Classified Civil Service (with limited exceptions):

  • All competitive class permanent appointees.
  • Any permanent appointee who was honorably discharged from the U.S. armed forces after serving in time of war.
  • Any permanent appointee who is an exempt volunteer firefighter.
  • An employee who has served at least 5 years of continuous service in a non-competitive position not designated as confidential or influencing policy.
  • A non-competitive employee of New York City in the position of Homemaker or Home Aide who has at least 3 years of continuous service in the position.
  • A police department employee holding the position of detective for three continuous years or more.

Now employees in the labor class get the same protections as non-competitive class employees. Thus, it applies to laborers with at least 5 years of continuous service. The exclusion for confidential or policy-influencing positions also applies, but it is unlikely that many laborers would have those designations.

Waiver of Section 75 Protections

Section 75 establishes default due process requirements for disciplining covered employees. However, employees can waive the protections of Section 75,

Many collective bargaining agreements between unions and public employers establish grievance and arbitration procedures in lieu of those provided by Section 75. Many labor class employees were already subject to these alternative procedures. For them, the amendment will not have any direct impact.

Click here for more on the detailed requirements of Civil Service Law Section 75.

What This Means for Public Employers with Laborers

The change to the law took effect immediately upon Governor Cuomo’s signing. Therefore, any labor class employees with 5 years of continuous service now have job protection–either through Section 75 or a pre-existing contractual alternative.

Governmental entities in New York (including municipalities and school districts) whose laborers previously had no contractual job protection now face a different reality. They must follow Section 75 before disciplining qualifying employees in the labor class.

 

To receive future updates on laws affecting New York workplaces, click here to sign up for our email newsletter.

Union Basics for Employers

Union Basics for Employers (Webinar Recap)

On September 20, 2018, I presented a complimentary webinar called “Union Basics for Employers.” For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

Click here to watch the webinar now.

In the webinar, I discuss:

  • Representation Procedures
  • Grievances and Unfair Labor Practices
  • Negotiations
  • Strikes and Lockouts

This webinar may be helpful both to companies that are currently unionized and those that are not. The content primarily focuses on private companies subject to the National Labor Relations Act. This includes most businesses other than governmental entities.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Union Basics for Employers”

Let’s face it, most employers would rather not have to deal with a union. While this webinar mentions some tips for staying union-free (i.e., be a good employer), the emphasis is on explaining what it means to have a union.

Topics include how unions come to represent employees in the first place and what happens once the union is in. I also describe the primary procedure for employees to vote their union out.

The webinar is also a good primer for human resources personnel joining a unionized company for the first time. Learn what to expect and what it all means for your company.

If nothing else, learn how to better co-exist with a union in your workplace here.

Don’t Miss My Future Webinars!

Click here to sign up for my email newsletter to be among the first to know when registration is open for upcoming programs!