Sep 4, 2018

New York State’s Model Policy on Harassment

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On August 23, 2018, New York State released its model sexual harassment prevention policy, a model sexual harassment complaint form, a model sexual harassment prevention training program, minimum standards for an employer’s sexual harassment prevention policies and trainings, and a list of frequently asked questions regarding the new requirements for employers in accordance with the state’s new sexual harassment laws.  To see the model policy, click here.

Earlier this year, Governor Andrew Cuomo signed into law the 2019 New York State Budget, that included a number of laws directed at combatting sexual harassment. Included in these laws was a requirement that employers adopt and distribute a written sexual harassment policy by October 9, 2018. Employers may comply with the law by utilizing the model policy promulgated by the New York State Division of Human Rights and the New York State Department of Labor (“NYSDOL”). However, if the employers do not adopt the model sexual harassment prevention policy, then it must establish that its policy meets or exceeds the  standards set forth in the model policy.

The model policy begins with a general statement that sexual harassment will not be tolerated, defines sexual harassment and retaliation, and provide examples. The model policy also sets out procedures for reporting sexual harassment, the responsibilities of supervisors and managers, the process for investigation of sexual harassment allegations, and other avenues of legal redress that may be pursued. The policy requires that employers, “Create a written documentation of the investigation (such as a letter, memo or email), which contains the following:

    • A list of all documents reviewed, along with a detailed summary of relevant documents;
    • A list of names of those interviewed, along with a detailed summary of their statements;
    • A timeline of events;
    • A summary of prior relevant incidents, reported or unreported, and
    • The final resolution of the complaint, together with any corrective action(s).”

At the conclusion of the investigation, the policy requires that the employer notify the complainant of the final determination and his or her right to file a complaint or charge externally as outlined in the policy. Employers may notify the parties via email.

The policy highlights that, aside from the internal process, employees may also choose to pursue legal remedies with the U.S. Equal Employment Opportunity Commission (EEOC), the New York State Division of Human Rights (NYSDHR), the NYCCHR (if applicable), and/or the local police department, at any time.

However, in addition to these general guidelines, there are portions of the model policy that impose additional obligations upon employers over and above those required by law, and that have the potential to be problematic in practice. For example, the model policy provides that an investigation into complaints or information about sexual harassment “should be completed within 30 days.” This 30-day requirement is not mandated by law, and a complete and thorough investigation of sexual harassment allegations may well require investigation over an extended period of time.

The NYSDOL’s draft materials indicate that employers must complete the initial training by January 1, 2019.

Notably, the recently released model policy is simply a draft, and is subject to change. The public comment period for the current draft expires on September 12, 2018, after which time the policy may be revised. Nevertheless, given that the implementation date is fast approaching, employers should look to the current draft for guidance, and begin to review and evaluate their policies and training to determine what steps, if any, need to be taken to ensure compliance.

If you have any questions regarding how the policy and training requirements, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.