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New York Employers Must Issue Compliant Anti-Sexual Harassment Policies by October 9, 2018

Effective next Tuesday, October 9, 2018, New York employers must adopt and issue to current employees an anti-sexual harassment policy that complies with the requirements set forth in Section 201-g of the New York State Labor Law (“Law”). Employers also must provide the policy to all new employees hired after that date.

As we previously reported, on October 1, 2018, New York State released its final sexual harassment guidance and resources, including a model sexual harassment policy. Along with this model policy, the State issued Frequently Asked Questions (“FAQs”), which provide additional information about the anti-sexual harassment policy required by the Law.

New York employers may either adopt the State’s model policy or establish a sexual harassment prevention policy that meets or exceeds the minimum standards provided by the State’s model policy.

According to the Law, the policy must:

  1. prohibit sexual harassment consistent with guidance issued by the New York State Department of Labor in consultation with the Division of Human Rights and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  2. include, but not be limited to, information concerning the federal and state statutory provisions regarding sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
  3. include a standard complaint form;
  4. include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
  5. inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially; 
  6. clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
  7. clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding involving sexual harassment is unlawful.

The State’s Combating Sexual Harassment in the Workplace website provides an optional sexual harassment poster, which provides information about where the policy can be found.[1] The State also issued a toolkit, which explains how employers can comply with the policy and training requirements.

The FAQs pertaining to the anti-sexual harassment policy:

  1. explain that a sexual harassment policy can be provided to employees in writing or electronically, and that if the policy is made available on a work computer, employees must be able to print a copy for their own records;
  2. state that if an employer already has established investigative procedures which are similar, but not identical, to those provided in the model policy, the employer may deviate from these specific requirements and remain compliant with the Law, but in any event the investigative procedures should be outlined in the policy;
  3. suggest that the sexual harassment policy should be provided to new hires “prior to commencing work,” which means that employers should take care to distribute the policy to new hires during or prior to onboarding;
  4. encourage (but do not require) employers to supply a policy and training to anyone providing services in the workplace, including independent contractors, vendors, or consultants;
  5. note that the complaint form need not be included directly in the policy, but employers should be clear about where the form may be found, for example, on a company’s internal website; and
  6. strongly encourage employers to provide a policy in the language spoken by an employee.

What New York Employers Should Do Now

  • Review and revise, as necessary, policies regarding sexual harassment in the workplace to conform to the requirements of the Law pertaining to sexual harassment policies, and include a complaint form.
  • Translate policies, and provide training in an employee’s primary language(s).
  • Provide the revised policy and complaint form to all employees by October 9, 2018.
  • Provide the revised policy to new employees prior to commencing work.
©2018 Epstein Becker & Green, P.C. All rights reserved.

TRENDING LEGAL ANALYSIS


About this Author

Susan Gross Sholinsky, Labor Employment Attorney, Epstein Becker Green Law Firm
Member of the Firm

SUSAN GROSS SHOLINSKY is a Member of the Firm in the Labor and Employment practice, in the New York office of Epstein Becker Green. She counsels clients on a variety of matters, in a practical and straightforward manner, with an eye toward reducing the possibility of employment-related claims. In 2013, Ms. Sholinsky was named to theNew York Metro Rising Stars list in the area of Employment & Labor.

212-351-4789
Jennifer Gefsky, Member of the firm, Epstein Becker, labor attorney
Member

JENNIFER GEFSKY is a Member of the Firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. Her practice covers labor and employment matters in a practical manner tailored to each client according to its unique business, culture, and circumstances.

Ms. Gefsky’s experience includes:

  • Advising clients on employment-related issues, including employment best practices; claims of discrimination based on race, sex, age, disability, and national origin; hiring and firing; compensation and benefits; and other terms and conditions of employment
  • Representing clients in collective bargaining agreements and labor disputes
  • Drafting employment/independent contractor agreements, employee handbooks, and separation agreements
  • Providing representation to clients in employment-related litigation before state and federal courts, arbitration panels, and administrative agencies
212-351-4742
Nancy Gunzenhauser, Labor Employment Attorney, Epstein Becker Law Firm
Associate

NANCY L. GUNZENHAUSER is an Associate in the Labor and Employment practice, in the New York office of Epstein Becker Green.

Ms. Gunzenhauser:

  • Counsels clients on compliance with EEO laws, the Americans with Disabilities Act, the Family and Medical Leave Act, worker classification issues, and other federal, state, and local statutes governing the workplace
  • Advises employers in all facets of the employment relationship, from pre-employment considerations and hiring to terminations and post...
212-351-3758
Alexandra Bruno Carlo, New York, Epstein Becker, Labor Litigation Lawyer,
Associate

ALEXANDRA BRUNO CARLO is an Associate in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green.

Ms. Bruno Carlo:

  • Advises clients on various labor and employment law topics, including antidiscrimination policies; the impact of misclassification of independent contractors; laws pertaining to parental leaves, sick leaves, and family leaves; ADEA compliance; and FMLA compliance

  • Counsels employers on practices...

212-351-3702