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Updates to New York State Guidance to Employers on Sexual Harassment Policies and Trainings

Effective October 9, 2018, all New York State employers are required to adopt written sexual harassment prevention policies for employees and, within a year (by October 9, 2019), all employers must implement mandatory anti-harassment training. In August 2018, New York Governor Andrew Cuomo’s office circulated draft guidance to the public, including a model sexual harassment policy, model training materials, a model complaint form, and FAQs. To read more about specific employer obligations under the guidance, refer to the Labor and Employment Group’s August 28, 2018 alert. As expected, the Governor’s office has now released the finalized materials, which have some notable variations from the draft:

  • Extension to implement mandatory training: Employers received a welcome extension to implement their first mandatory anti-harassment training as the finalized materials shifted the deadline from January 1, 2019 to October 9, 2019. Under the final guidance, there is no minimum number of training hours or minimum length of time for each training session required per year for employees.

  • Training new hires: The State removed language requiring employers to train new hires within 30 days, and replaced it with “as soon as possible.”

  • Training in other languages: The updated FAQs state that employers have an obligation to provide training in other languages for employees whose primary language is one other than English, based on the languages available through model templates provided by the State.

  • Modification of definition of sexual harassment: The definition of “sexual harassment” is modified to prohibit harassment against individuals’ “self-identified or perceived sex, [or] gender expression” and to prohibit unlawful “sex stereotyping.”

  • Posting sexual harassment policy in work locations: The draft policy stated that it must be posted prominently in all work locations. The final version narrows this directive and states the policy “should be posted prominently in all work locations to the extent practicable (for example, in a main office, not an offsite work location).”

  • Updated complaint form: The draft model complaint form included questions about whether the complainant filed a lawsuit or is represented by counsel. The final model form replaced these questions with the following statement: “If you have retained legal counsel and would like us to work with them, please provide their contact information.”

  • Conducting investigations: The State replaced language in the model training program that investigations should be concluded within 30 days, instead stating that the investigations should be “commenced immediately” and completed “as soon as possible.” The State also added language that investigations should be kept “confidential to the extent possible.” This revision should provide employers with some much-needed relief, as complex investigations may take longer than 30 days to conduct and complete, and absolute “confidentiality” cannot be guaranteed and may not be appropriate in all cases.

  • Training about additional responsibilities for supervisors: The final guidance states that all employees, not just managers and supervisors, must be made aware of the “extra requirements for those in managerial/supervisory roles” concerning sexual harassment prevention, reporting, and investigating.

  • Training third-party vendors or other non-employees: There is no requirement to train (or provide a copy of the harassment prevention policy) to third-party vendors or other non-employees, although employers are “encouraged to provide the policy and training to anyone providing services in the workplace.” This revision creates some uncertainty as to who should receive the policy and training, and employers should consult with counsel before implementing a practice with respect to non-employees so as to minimize joint employer risks.

Copyright © by Ballard Spahr LLPNational Law Review, Volume VIII, Number 281



About this Author

Meredith Dante, labor and employment lawyer, Ballard Spahr

Meredith S. Dante represents employers across industries including retail, consumer products, hospitality, financial services, technology, life sciences, health care, manufacturing, and higher education in a broad range of labor and employment disputes. She partners with clients to proactively identify issues and devise legal solutions that are specifically tailored to the client's workforce and business needs. She regularly advises clients in matters involving discrimination, whistleblower complaints and retaliation, wage and hour issues, reductions in force, compliance...

Denise Keyser Employment Law Attorney Ballard Spahr

Denise M. Keyser has more than 30 years of experience representing national, regional, and locally based businesses in labor and employment matters, including traditional labor law (such as collective bargaining and arbitrations), OSHA, ERISA, wage and hour, employment-at-will, wrongful discharge, discrimination, management training, executive compensation, and affirmative action.

Marjoree Peerce Litigator  Criminal Defense Ballard Law FIrm

Marjorie J. Peerce is a litigator, with a practice focus on white collar criminal defense, regulatory matters, and complex civil litigation. In her more than 30 years of practice, she has handled matters across the criminal and regulatory spectrum. She is Co-Managing Partner of the firm's New York Office.

Ms. Peerce appears in New York state and federal courts, as well as in federal districts around the country. She has handled criminal and regulatory investigations concerning, for example, violations of the Internal Revenue Code, securities...

Anu Thomas, Ballard Spahr Law Firm, Philadelphia, Labor and Employment Litigation Attorney

Anu Susan Thomas is an associate in the Litigation Department and a member of the firm’s Labor and Employment Group. While in law school, Ms. Thomas was a summer associate at Ballard Spahr, and a Philadelphia Diversity Law Group summer associate in the Office of University Counsel at Temple University, where she conducted legal research and drafted documents that addressed employee, faculty, and general university issues. She also served as an education and community outreach field officer and project manager at the Profugo Organization in South India, where she...