New York State issued final guidelines and an updated model policy in connection with the state’s recent Anti-Sexual Harassment Law. This legislation requires New York employers to adopt and distribute an anti-sexual harassment policy and begin conducting annual sexual harassment prevention training for employees, among other things.
Last week, the state published an updated model policy, training materials, and additional guidance after a public comment period. New York employers must have compliant policies in place by this Tuesday, October 9, 2018. Employers have until October 9, 2019 to train employees on the policy. This is a change from the draft guidance that previously indicated that the deadline for employers to provide such training would be January 1, 2019.
The final guidance materials further clarify the requirement that the anti-sexual harassment training be “interactive,” and encourages employers to use a live trainer. The guidance also confirms that employers cannot merely show employees a video or give employees a document to be compliant. The guidance provides the following examples that would satisfy the “interactive” requirement:
- If the training is web-based, it has questions at the end of a section and the employee must select the correct answer.
- If the training is web-based, the employees have an option to submit a question online and receive an answer in a timely manner.
- Web-based or in-person training provide a feedback survey for employees to turn in after completion.
- In an in-person or live training, the presenter asks the employees questions or provides them an opportunity to ask questions throughout the presentation.
The final guidance materials clarify several other aspects of the legislation. For example, employers should train new hires “as soon as possible.” This is a change from the draft guidance that previously required training for new hires within thirty (30) days of hire.
Further, employers must train employees once per year. After the initial training, the year may be based on the calendar year, the anniversary of each employee’s start date, or any other date the employer chooses. If an employer already conducted employee training this year that did not meet the requirements of the new legislation, employers need only provide supplemental training to address the new requirements.
The state also made several revisions to the language in the model sexual harassment policy and model complaint form. To review the updated model policy, click here. The updated final guidance materials provide additional details regarding the policy requirement. For example:
- Employers are not required to provide a complete copy of the model complaint form in their policy, so long as they specify where the form may be found, such as on a company’s internal website.
- The new legislation does not require employers to obtain a signed acknowledgment from employees that they received the policy. However, the guidance does provide that “employers are encouraged to keep a signed acknowledgment and to keep a copy of training materials.”
- Employers must provide the policy in writing or electronically. If an employer makes a copy of the policy available on a work computer, employees must be able to print a copy for their own records.
Employers should examine their policies and work with counsel to ensure they are in compliance. Employers must revise, finalize and distribute their updated policy to all New York employees by October 9, 2018. Employers should also plan to conduct training for all employees by October 9, 2019. If you have any questions regarding the policy and training requirements, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.