What Anti-Sexual Harassment Training And Policies Must My Company In Manhattan, NY Now Have?

On April 12, 2018, New York State Governor Andrew M. Cuomo signed, into law, a state budget for the 2018-2019 fiscal year, N.Y. State Senate Bill No. S07507C, N.Y. State Assembly Bill No. A09507-C (“the Act” or “the new law”). The Act includes a provision, Part KK, aimed at preventing sexual harassment in the workplace. Among other things, the Act requires employers in Manhattan, NY to adopt a sexual harassment prevention policy and to conduct annual anti-sexual harassment training for employees, beginning October 9, 2018.

Subpart B of Part KK of the Act (the subpart mandating anti-sexual harassment training and policies) adds a new section 201-g to the New York Labor Law.

Among the Act’s mandates are the following:

Adoption or Establishment, by Employers, of Sexual Harassment Prevention Policies

By October 9, 2018, employers in Manhattan, NY must provide to all employees, in writing, a sexual harassment prevention policy.

The Act directs the New York State Department of Labor (“the State Department of Labor” or “the NYSDOL”) and the New York State Division of Human Rights (“the State Division of Human Rights” or “the NYSDHR”) to draft and to publish, on these State agencies’ respective websites, a model sexual harassment prevention policy. Employers must either adopt the State Department of Labor’s and the State Division of Human Rights’ model sexual harassment prevention policy or establish the employer’s own sexual harassment prevention policy that equals or exceeds the State agencies’ model policy’s minimum standards.

To date, the NYSDOL and the NYSDHR have not published their model sexual harassment prevention policy. However, the new law specifies that these State agencies’ model policy, and any employer’s own sexual harassment prevention policy, must include, among other information:

• A statement that sexual harassment is prohibited;
• Examples of prohibited conduct that constitutes unlawful sexual harassment;
• Information about the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment, as well as a statement that there may also be applicable local laws;
• A standard complaint form;
• A procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
• A statement informing employees of their rights of redress and all available forums, including administrative agencies and courts, for adjudicating sexual harassment complaints;
• A clear statement that sexual harassment is considered a form of employee misconduct and that the employer will punish both individuals engaging in sexual harassment and supervisory and managerial personnel who knowingly allow such behavior to continue; and
• A clear statement that it is unlawful to retaliateagainst individuals who complain of sexual harassment or who testify or assist in any covered proceeding.

Conducting, by Employers, of Mandatory Anti-Sexual Harassment Training

Effective October 9, 2018, the Act requires employers in New York State to annually conduct anti-sexual harassment “interactive” training for all employees.

The new law does not specify whether this “interactive” training must be live or facilitated by an in-person instructor.

The Act instructs the the State Department of Labor and the State Division of Human Rights to develop and to produce a model sexual harassment prevention training program. Employers must either utilize the NYSDOL’s and the NYSDOL’s model sexual harassment prevention training program or establish the employer’s own sexual harassment prevention training program that meets or exceeds the State agencies’ model policy’s minimum standards.

To date, the NYSDOL and the NYSDHR have not published their model sexual harassment prevention training program. However, the new law specifies that these State agencies’ model training program, and any employer’s own anti-sexual harassment training program, must include, among other information:

• An explanation of sexual harassment;
• Examples of conduct that constitutes unlawful sexual harassment;
• Information about the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
• Informing concerning employees’ rights of redress and all available forums for adjudicating complaints; and
• Information addressing conduct by supervisorsand any additional responsibilities for such supervisors (for example, the responsibilities of supervisory employees in the prevention of sexual harassment and with regard to retaliation).

The Act does not specify what fines or penalties, if any, may be imposed on employers in Manhattan who fail to distribute to all employees a written sexual harassment prevention policy or who fail to hold annual anti-sexual harassment training for employees.

By its terms, the new law applies to all employers in Manhattan, regardless of the number of employees they employ. See N.Y. Lab. Law § 2(6) (defining an “Employer” as any person employing one or more employees).

However, the Act authorizes the NYSDOL to promulgate regulations implementing the new law. It is possible that, in any regulations that the NYSDOL may issue concerning the Act, the NYSDOL will limit the application of the Act’s mandate of sexual harassment prevention training to employers with a specified, minimum number of employees.

In addition to the new law, and effective April 1, 2019,Manhattan’s Local Law 96 of 2018 requires every nongovernmental employer with fifteen (15) or more employees to annually conduct an anti-sexual harassment “interactive training” for all employees, including supervisory and managerial employees, of the the employer who are employed in Manhattan, NYC.

If your company needs assistance or guidance on a labor and employment law issue and your company is located in the Manhattan, NY area, call Attorney David S. Rich at (347) 970-5550.