In April 2018, New York State law was amended to require all employers to maintain a written sexual harassment policy and provide annual sexual harassment training for all employees. The law required the New York State Department of Labor to formulate model policies and training programs. On August 27, 2018, initial versions of these documents appeared online.

The State’s website on “Combating Sexual Harassment in the Workplace” notes that “the sexual harassment policy and complaint form are draft documents”. It encourages interested parties to submit comments by September 12, 2018.

[Click here to read an earlier summary of the new sexual harassment laws themselves.]

Model Sexual Harassment Policy

Many New York employers already have written anti-harassment policies. These policies may prohibit many forms of workplace harassment, of which sexual harassment is just one. However, the New York law only requires a sexual harassment policy. And the State’s draft model policy only addresses sexual harassment. Thus, it remains unclear whether employers can satisfy the law through an omnibus anti-harassment policy or must have a standalone sexual harassment policy. For now, compliance caution favors the latter approach.

The State’s model policy is seven full pages long, single-spaced. It includes these primary sections:

• Introduction
• What Is “Sexual Harassment”?
• What is “Retaliation”?
• Supervisory Responsibilities
• Complaint And Investigation Of Sexual Harassment
• Legal Protections And External Remedies

Most of these sections have sub-headings. These include “Examples of sexual harassment,” “Where can sexual harassment occur?” and “Contact the Local Police Department.”

That last section is one to note. It reads, in full: “If the harassment involves physical touching, coerced physical confinement or coerced sex acts, the conduct may constitute a crime. Contact the local police department.” This wording does not clarify who should contact the police. Does it pertain to management receiving complaints or just employees subjected to such conduct?

The model policy goes into other areas not normally included in traditional anti-harassment policies. For example, it gets fairly detailed in describing the steps management will take in investigating complaints of sexual harassment. The steps are generally absolute and don’t allow for much investigatory judgment. On the other hand, it is not comprehensive in explaining all aspects of an effective workplace investigation.

The NYS model sexual harassment policy is available here.

“Zero Tolerance” Policy

The New York draft model sexual harassment policy states at the outset that it is a “zero tolerance” policy “for any form of sexual harassment.” It later references a “zero tolerance” policy for retaliation against anyone “who, in good faith complains or provides information about suspected sexual harassment.” However, the policy does not carefully explain what “zero tolerance” means.

As I’ve discussed before, “zero tolerance” policies are a good idea if properly understood only to mean that the employer does not tolerate harassment. However, many misperceive the term to indicate that any form of harassment will lead to termination of employment. That philosophy often proves untenable.

On the whole, the model policy clearly intends that termination is not the only possible outcome for prohibited sexual harassment or retaliation. But it can also be read as strongly favoring severe penalties for even comparatively minor violations. “Sexual harassment” under the law and this policy is not always physical or even “sexual” per se. As the model policy acknowledges, it includes unwelcome conduct “which is directed at an individual because of that individual’s sex.” This can include comments or jokes unrelated to sexual intentions or motivations. Although still wrong, such actions will not always warrant job loss.

Not Limited to the Workplace

The draft model sexual harassment policy properly advises that harassment can occur even outside the workplace. It contains the following provision to this point:

“Unlawful sexual harassment is not limited to the physical workplace itself. It can occur while employees are traveling for business or at employer-sponsored events or parties. Calls, texts, emails, and social media usage by employees can constitute unlawful workplace harassment, even if they occur away from the workplace premises or not during work hours.”

Sexual Harassment Complaint Form

As the new State law requires, the model policy references a written complaint form. The State has issued a draft complaint form as well. The policy encourages, but does not require, the complaining employee to use this form.

The form itself asks basic identification information about the complaining employee, their immediate supervisor, and the alleged harasser. It then asks questions about the nature of the sexual harassment and the identity of witnesses.

The remaining questions are more surprising. One question asks whether the employee has “previously complained or provided information (verbal or written) about sexual harassment” at the employer. This questions (and a follow-up) may be seeking to determine whether the employee has raised concerns about the same harasser in the past (and to whom), but as phrased, is broader and arguably appears to ask whether the person is a frequent complainant.

The form then advises the employee that they may be able to file claims with government agencies or in the courts. Moreover, it specifically asks the employee whether they have filed a claim with an agency or in court and whether they have hired an attorney. I’m not sure that most employers would feel comfortable asking these questions so directly on their own or whether employees would expect to have to answer them.

The third page of the model complaint form provides “Instructions for Employers.” These “instructions” are brief and essentially remind the employer to investigate.

You can access the draft model complaint form here.

Minimum Standards for Sexual Harassment Prevention Policies

The State has also provided a one-page document that acknowledges that employers don’t have to adopt the model policy.

Instead, an employer could implement an alternative policy that exceeds these minimum standards:

• prohibits sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
• provides examples of prohibited conduct that would constitute unlawful sexual harassment;
• includes information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
• includes a complaint form;
• includes a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
• informs employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
• clearly states that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
• clearly states that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

Many employers will likely adopt the State’s model policy as a path of least resistance. However, some employers will prefer to craft their own language to better fit their organizations (and avoid some of the questionable contents of the model policy, at least as contained in the draft version).

This minimum standards guidance document also asserts that “Employers should provide employees with the policy in the language that is spoken by their employees.” The scope of this requirement is unclear.

Model Sexual Harassment Prevention Training

New York State has issued a 24-page Model Sexual Harassment Prevention Training manual (labeled the “July 2018 Edition”). It is not clear whether the State is seeking comments on this document or may revise it before October 9th.

The training documentation reiterates the law’s requirement that the training must be “interactive.” The State clarifies that this requires “some level of participation by those being trained.”

To this end, the model training manual advises:

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
• Require feedback from employees about the training and the materials

There is some ambiguity in whether the State prefers sexual harassment training to be both “web-based” and facilitated by a live trainer.

The training manual references model materials that include a script, PowerPoint, video, and FAQs.

Click here for the model training package. And here for the draft PowerPoint presentation.

Training FAQs

The law requires annual interactive sexual harassment training. The training materials focus solely on sexual harassment. Thus, it’s still unclear whether or to what extent training must separate out sexual harassment from other forms of prohibited workplace harassment. However, the State’s Combating Sexual Harassment website does answer some questions employers have been asking.

Some of the State’s questions followed by my paraphrasing of its answers:

1. By what date do all of my employees need to be trained? January 1, 2019
2. How often must employees receive sexual harassment training? After 1/1/19 may be based on calendar year, employee anniversary “or any other date the employer chooses”!
3. What about new employees or those who start after January 1? Must complete sexual harassment training within 30 days of start date.
4. What happens if some employees fail to take the training despite an employer’s best efforts to make it available, and to require everyone to take it? Every employee must receive annual training. If you can’t get them to participate, you may have to fire them to stay compliant.

What Should New York Employers Do Now?

If you have any employees in New York, then:

1. You must have a compliant written policy in place by October 9, 2018; and
2. You must provide compliant sexual harassment training to all employees by January 1, 2019.

But, I wouldn’t rush to put the State’s model sexual harassment policy into place yet. Expect that employers, unions, employees, business groups, attorneys, and various other parties will submit numerous comments and critiques by September 12, 2018. Even if the State would like to simply finalize its current draft, that outcome is unlikely. Some revisions will occur.

Depending on what the final model policy looks like, employers may be better off to implement an alternative, though legally sufficient, policy. Employers should, however, confer with experienced employment counsel before taking that approach.

I also would not rush to provide sexual harassment training immediately. There may also be further guidance or at least model materials available before January 1st (and hopefully before October 9th). Regardless, employers have tough decisions to make about the best approach to training, keeping in mind that it will be an annual responsibility (and an ongoing one for new hires).

Stay tuned for more analysis of any new guidance on New York’s sexual harassment policy and training policies. To receive updates through our email newsletter, sign up here.