Update: New York State Issues Final Guidance and Materials on Sexual Harassment Prevention Laws
On October 1, 2018, Governor Andrew Cuomo released finalized guidance and materials on New York State’s new sexual harassment prevention laws – including an updated website with resources for employers, an updated model sexual harassment prevention policy, updated model trainings, updated Combating Sexual Harassment: FAQs, and a toolkit for employers – which are the product of the State’s assessment and assimilation of comments received from the public. Our previous Employment Note discusses the guidance and materials initially proposed by the State and provides an overview of notable employer obligations under these laws, including the requirement to provide employees with annual sexual harassment prevention training and to distribute a written anti-harassment policy.
Below are some of the significant differences in the finalized guidance and materials from that which was proposed:
- The finalized guidance extends the deadline for employees to complete their first training from January 1, 2019 to October 9, 2019, now giving employers a full year to implement compliant training programs. Notably, this extended deadline will enable New York City employers to utilize expected guidance from the City regarding the City’s sexual harassment training law to create a training program that complies with both the City’s and the State’s requirements and avoid the need to conduct duplicative trainings. (As a reminder, the training requirement under the City’s “Stop Sexual Harassment in NYC Act” takes effect on April 1, 2019).
- The finalized guidance removed language requiring new employees to be trained within 30 days of starting work, and now provides that “the State encourages training as soon as possible.” Nevertheless, employees must still be trained on an annual basis.
- The finalized guidance clarifies that employers must provide trainings and policies in the language spoken by their employees. Model materials will be translated into Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish, and Haitian-Creole. To the extent a model training is not available from the State in an employee’s primary language, the employer may provide that employee an English-language version, but employers are strongly encouraged to provide a policy and training in the language spoken by the employee as employers may be liable for the conduct of all employees.
- The finalized guidance clarifies that employers are not required to use the State’s model trainings or model policy as long as they satisfy the minimum standards for sexual harassment prevention policies and trainings. The State’s model policy and trainings actually go beyond what is required by law, and thus employers should consider whether it is prudent to utilize such models.
While the finalized guidance now gives employers a full year to conduct sexual harassment training programs for their employees, employers are still required to distribute a compliant written anti-harassment policy by October 9, 2018. Employers should work with employment counsel to ensure compliance with their obligations and discuss efficient ways to implement sexual harassment prevention trainings that will comply with both the State’s and the City’s requirements, to the extent applicable.
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