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.
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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.