Anti-Harassment Training Update for New York Employers: Are You Compliant?

In April, New York governor Andrew Cuomo signed a sweeping budget bill, which included several major amendments to the New York Human Rights Law (NYHRL). One of the most significant aspects of the bill was the mandate that New York employers adopt robust sexual harassment policies as well as provide mandatory anti-sexual harassment training to all employees, not just managers. Specifically, the law requires employers with four (4) or more employees to adopt sexual harassment policies and training consistent with a model policy and model training prepared jointly by the Commissioner of Labor and the New York State Human Rights Division.

That law became effective on October 9, 2018, and New York state has finally released the model materials, an online “Toolkit for Employers”, including a model sexual harassment policy, a model complaint form, and a model interactive training program. All of the state’s model materials are accessible to employers via a website set up by the government.

Pursuant to the law, employers must adopt a policy, complaint form, and training program that “equals or exceeds” the model materials by October 9, 2018. Additionally, employers must provide written copies of a compliant policy to all employees, and must provide the policy, complaint form, and training in the primary language spoken by their employees if the state has provided the training templates in the employee’s primary language. The state has committed to providing the online training materials translated into Spanish, Chinese, Korean, Russian and other languages in the near future. If a translated version in the employee’s primary language is not available, employers can provide the training in English but still are encouraged to provide training in the employee’s primary language.

The model policy is expansive and provides examples of sexual harassment, as well as extensive details regarding legal protections against harassment, including procedures for employees who wish to file a complaint with the EEOC or New York State Division on Human Rights. Significantly, the law sets up a robust investigation method employers should follow in response to complaints of sexual harassment, including obtaining and preserving electronic and written records, reviewing communications related to the complaint, interviewing “all parties involved, including any relevant witnesses,” creating written documentation of the investigation delineating documents reviewed and witnesses interviewed, notifying the complainant and alleged harasser of the “final determination,” and informing the complainant of the right to file an external charge or complaint.

The model training contains several examples of scenarios that do or do not constitute sexual harassment, and the instructions for employers encourage group discussion or role play activities, consistent with the law’s requirement that the training be interactive. The instructions provide that employers may tailor the training to particular procedures, while remaining consistent with the minimum requirements of the NYHRL.

The recently released final guidance does provide that the January 2019 deadline for completion of anti-harassment training has been extended to October 2019, and new hires must be trained “as soon as possible” rather than within 30 days of hire. Employers are not required to train “non-employees”, a/k/a independent contractors, but are “encouraged to provide the policy and training to anyone providing services in the workplace.” In addition to the model policy and model training guide, the website also includes a mandatory poster regarding sexual harassment that employers are required to post in the workplace in multiple languages.

Employers with 15 or more employees in New York City also need to comply with training and notice requirements mandated by the “Stop Sexual Harassment in NYC Act.” As of September 6, 2018, New York City employers are required to: (1) provide all new hires with the fact sheet released by the NYC Commission on Human Rights; and (2) post the Commission’s required anti-harassment rights and responsibilities notice. Both the fact sheet and notice must be provided in English and Spanish. Employers also must provide anti-harassment training to all employees by April 2020, and then provide annual training thereafter. Employers can satisfy the training requirement with their own interactive (although not necessarily live) training. The NYC Commission on Human Rights is developing an online training tool that will satisfy the annual anti-sexual harassment training requirement in the upcoming months. Notably, the NYC law emphasizes the need for training on bystander intervention as a means to stop, effectively, workplace harassment. Employers are obligated to keep records of all trainings, including a signed employee acknowledgement, for at least three years. These records can be kept electronically.

For many employers, anti-harassment training has been a “best practice” to prevent workplace harassment and to support an affirmative defense in response to harassment lawsuits. Now, it is not only a best practice, but a practice mandated by laws enacted in a growing number of jurisdictions, including Delaware, California, Connecticut, and Maine. More legislation is expected, and employers should evaluate anti-harassment policies and training procedures for all jurisdictions.