New sexual harassment laws in place in New York state

New York member firm Golenbock Eiseman Assor Bell & Peskoe (GEAB&P) previously reported that New York State had passed new legislation aimed to force New York employers to clamp down on sexual harassment in the workplace. However, the original draft guidance on the new law, issued on August 24, 2018, contained a number of vague and incomplete areas that needed to be clarified.

After entertaining a notice and comment period to the new rules, the State has now finalised model policies, a model harassment training prevention program, and other related documents (including a model employee complaint form) that solidify the requirements under the new law. Notably, the State has clarified some areas of confusion, as well as pushed back the initial deadline for the required annual harassment training.

The new annual training deadline in New York State is now October 9, 2019 (approximately one year later than previously proposed). However, the requirement that every employer within the State adopt a detailed sexual harassment policy and a satisfactory harassment complaint and investigation procedure will still go into effect on October 9, 2018.

This detailed and updated guidance is now available online. Please remember that under these guidelines there is no exception for employers based on size. All employers must comply with the anti-harassment training requirements.

The final guidelines provide a number of clarifications on the new training requirements. Some notable examples include the following:

• Training may be provided online, so long as it is “interactive” (i.e. training cannot be simply watching a video or reading a document), and must provide for: (i) questions posed to employees that they must respond to, (ii) the option for employees to ask questions and receive responses (either online or from the presenter), and/or (iii) feedback to be surveys received after the end of the training
• Utilizing professional trainers is considered a best practice, but it is not required and anyone may present the training, including attorneys, third-party vendors, and employees, and they may do so by telephone or video conferencing
• Extra training must be provided to managers regarding their additional role in the anti-harassment process (such as receiving complaints and investigating)
• Employees must be paid for time spent training at their regular pay rate (or overtime rate, if applicable)
• For hospitality employers (restaurants, bars, and hotels), time spent training must be recorded and counted against the “80/20” rule in compliance with the tip credit minimum wage regulations in the New York Hospitality Industry Wage Order. They should also never apply tip credits to any such training hours.

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Beyond New York State’s new guidance, please also remember that these new developments are separate and distinct from New York City’s new sexual harassment policy requirements that will become effective April 1, 2019. Annual harassment training in accordance with NYC’s requirements is expected to be required before April 1, 2020. Early next year, look for the City’s expected guidance regarding its anti-harassment requirements, which employers in New York City must comply with as well.

Please contact Alexander Leonard or the GEAB&P attorney with whom you regularly work with any questions concerning the development of sexual harassment prevention policies, forms, and training programs, and to address any related concerns. GEAB&P is also available to conduct the required interactive sexual harassment prevention training for your company.