New York finalizes anti-harassment materials, provides toolkit for employers

After a period of public comment that ended in mid-September, New York state published final versions of its model policy, training materials, complaint and guidance related to the state’s recently enacted anti-harassment laws. It also provided a new Sexual Harassment Prevention Employer Toolkit that summarizes the obligations of employers and the final policies, training materials and guidance, and includes “step-by-step guidance” for compliance with the new laws. All of the materials can be found on the employer section of the state’s “Combating Sexual Harassment in the Workplace” website.

The deadline of October 9, 2018, by which all employers are required to adopt a compliant sexual harassment policy has not changed. (Read our prior alert on the law’s requirements here.)

In response to submitted comments, the final versions of the documents include some key changes from prior drafts.

Model Anti-Harassment Policy

• The policy no longer includes mention of the employer having a “zero tolerance” policy for sexual harassment, making the state’s model policy consistent with the position of the Equal Employment Opportunity Commission disfavoring the term.
• The policy requires an investigation of sexual harassment to be completed “as soon as possible” after receipt of a complaint, rather than the 30-day requirement in the draft.
• The policy now states that the investigation process “may vary from case to case.”
• The policy now provides that documents related to an investigation should be kept in a “confidential location.”
• The policy now provides that documentation of the investigation should include “the basis for the decision” regarding the resolution of the complaint, as opposed to just a statement of any corrective action to be taken.
• The FAQs clarify that employers can provide the policy either in written or electronic form (if provided electronically to work computers, employees must have a way to print the policy).
• The guidance stressed that employers should provide the policy to new hires “prior to commencing work.”
• A signed acknowledgement of receipt of the policy from employees is “encouraged,” but not required.

Complaint Form

• The final complaint form differs from the prior draft model in that it does not ask
• whether the individual has filed a claim with a governmental agency or a lawsuit or
• whether employees have hired an attorney (although it still provides a place for contact information of legal counsel, if one has been retained).
• The FAQs clarify that the complaint form need not be included in the policy, but that the policy should clearly state where the complaint form may be found or obtained.

Training

• The most notable change is that the deadline for completing the required initial sexual harassment prevention training has been extended to October 9, 2019, from the January 1, 2019 date in the draft guidance.
• The final guidance includes clarification on timing of training, including
• No required deadline for training new employees, but rather “training as soon as possible.”
• The employer may set the annual training required after the first training based on calendar year, the employee’s anniversary or any other date the employer chooses.
• If an employer has already provided training to employees this year that meets or exceeds the legal requirements, it need not provide additional training until the next annual training cycle.
• If an employer’s training did not meet all the requirements under the new law, the employer only needs to provide supplemental training addressing the uncovered topics in this annual cycle.
• The final guidance clarifies that no minimum number of training hours per year is required, only that the employer must provide training that meets or exceeds the minimum standards.
• While the final guidance reiterates that employers must conduct the training in the language spoken by the employees and encourages employers to provide training in the employees’ primary language, if possible, they may conduct the training in English if the state does not have model training in that primary language
• The final guidance provides that employees who work a “portion of their time” in New York, including full-time and part-time employees, seasonal employees, temporary employees, exempt and non-exempt employees, must receive training, but eliminates the requirement from the draft guidance that employees who work for just one day in New York must receive training.
• The final guidance clarifies that aspects of the model training program that are not expressly required by the law are “strongly recommended,” but not are not required.
• Employer must pay employees for time spent training, including for time new employees spend prior to the start of their actual job.
• Employers do not have an obligation to train (or provide a copy of the sexual harassment prevention policy to) third-party vendors or other non-employees, though employers are “encouraged to provide the policy and training to anyone providing services in the workplace.”
• With regard to the requirement that the training address “additional responsibilities for supervisors,” the guidance clarifies that all employees should be made aware of these extra requirements and employers need not, but may choose to, provide separate training for supervisors.
• With regard to the requirement that the training be “interactive,” the final guidance clarifies that “[a]n individual watching a training video or reading a document only, with no feedback mechanism or interaction, would NOT be considered interactive, and gives the following examples of acceptable employee participation:
• If the training is web-based, it has questions at the end of a section and the employee must select the right answer.
• If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner.
• In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions.
• Web-based or in-person trainings that provide a Feedback Survey for employees to turn in after they have completed the training.

Non-Disclosure Provisions

• The final guidance did not change the requirement that two separate agreements must be entered into in connection with settlement provisions requiring the confidentiality of the underlying facts and circumstances of sexual harassment claims – a written document with the nondisclosure term or condition, and the final settlement agreement.
• The final guidance clarifies the required procedure for these provisions:
• The employee has 21 days to consider the written confidentiality terms.
• The employee has seven days to revoke agreement to the written terms.
• Only after both time periods have run can the provisions be incorporated in the larger agreement
• The 21-day time period cannot be waived or shortened, and cannot run concurrently with the seven-day revocation period.