NYS Advances its #MeToo Agenda: Draft Sexual Harassment Guidance Released

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Late last week and in anticipation of the October 9, 2018 deadline for compliance with the statewide sexual harassment prevention mandate (the “Mandate”), New York Labor Law § 201-g, New York State released a model policy, complaint form, and training module.  The materials are still in draft form and the State is accepting public comments through September 12, meaning these documents are subject to change.  The model policy, complaint form, training module, and FAQs are available here.  Several portions of the sample documents exceed the Mandate’s minimum requirements, and some directly conflict with the position of other agencies.

As originally passed, the NYS Mandate requires all employers to: adopt a policy preventing sexual harassment in the workplace; annually train all employees on sexual harassment prevention; and provide a complaint form for reporting sexual harassment.  The Mandate applies to all employers, regardless of size, in New York State.

Policy

The Mandate requires that employers provide each employee with a copy of the employer’s policy, and the FAQs clarify that employers are encouraged to obtain a signed acknowledgement of receipt.

The sample policy significantly exceeds the minimum standards of a sexual harassment prevention policy set forth in the Mandate.

  • The sample policy states there will be “zero tolerance” for sexual harassment or retaliation, directly conflicting with statements from the Equal Employment Opportunity Commission, including from Commissioner Chai Feldblum, who stated in July 2018 that having a “zero-tolerance policy” in the wake of the Me Too movement “will not only be correctly perceived as an unfair system, but it might also chill reporting.”
  • The sample policy states that it will be posted prominently in all work locations and provided to employees upon hire, which is not a requirement set forth in the Mandate.
  • The sample policy also includes contact information for the employee(s) to whom individuals should report sexual harassment, provides that an employer will investigate any complaints of sexual harassment within 30 days of the complaint, and states that the employer will create written documentation of the investigation, containing:
    • A list of all documents reviewed, with a detailed summary of relevant documents;
    • A list of names of those interviewed, along with a detailed summary of their statements;
    • A timeline of events;
    • A summary of prior relevant incidents, reported or unreported; and
    • The final resolution of the complaint, together with any corrective action(s).

There is no basis in law for the short time frame nor is there any requirement in the Mandate that an employer conduct an investigation in the manner prescribed and create the extensive documentation outlined in the sample policy.

  • The sample policy includes a detailed description of state and federal remedies, including the time limits for filing complaints with the State Division of Human Rights (DHR), the New York State Supreme Court, and the federal Equal Employment Opportunity Commission (EEOC); the interplay between the DHR and EEOC; and contact information (phone numbers, email addresses, and websites) for the DHR and EEOC. The Mandate requires that sexual harassment prevention policies, “inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially” in addition to including “information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws.”
  • The sample policy notes that some harassment may constitute a crime, and advises employees that, “if the harassment involves physical touching, coerced physical confinement or coerced sex acts,” they can contact the police.

Training

As expected, the model training explains what constitutes “interactive” training:

  • Be web-based with questions asked of employees as part of the program;
  • Accommodate questions asked by employees;
  • Include a live trainer made available during the session to answer questions; and/or
  • Require feedback from employees about the training and the materials presented.

The draft model training is in the form of a script for in-person training.  A model PowerPoint and video presentation are also expected to be issued but the guidance does not indicate when they will be made available and whether there will be an opportunity for public comment.  The model training encourages employers to “take appropriate administrative remedies” to ensure that all employees receive training on an annual basis.  This suggests that the State is encouraging employers to discipline employees for failure to attend sexual harassment prevention training.

The FAQs provide that all employees must complete sexual harassment training by January 1, 2019 and that after January 1, 2019, all employees must complete sexual harassment training within 30 calendar days of commencing employment.  This exceeds the Mandate’s requirement that all employees complete sexual harassment training within one year of beginning their employment, and annually after that – saying nothing about January 1, 2019.

The model training also exceeds the minimum requirements of the Mandate, by noting that an investigation of any complaint of sexual harassment or retaliation should be completed, “within a reasonable timeframe, for example, within 30 days.”  This suggests employers may take longer than 30 days to complete an internal investigation of sexual harassment or retaliation, despite the model policy’s statement that investigations will be complete within 30 days.  Again, the Mandate does not provide a timeframe in which an investigation must be completed.

Complaint Form

The sample complaint form requests the complainant’s home phone number, home address, work contact information, supervisor’s name, title, and contact information, and contact information for the harasser, in addition to a detailed description of the conduct at issue, whether the individual had previously complained about the conduct at issue, and whether the complainant has filed an external complaint and hired an attorney.  It also includes a step-by-step process for an employer’s investigation of a sexual harassment complaint.  The Mandate does not specify what must be included on the complaint form.

Outstanding Issues

The materials released do not clarify the “due process” that an employer must afford all parties to a sexual harassment investigation, as set forth in the Mandate.  Since private employees do not have any constitutional due process rights, there is no guidance on this “due process” standard means.

Of particular interest to New York City employers, it is not clear how the State’s model materials will align with the new New York City requirements for preventing sexual harassment in the workplace.  The State’s sample policy includes a definition of sexual harassment differs from the definition of sexual harassment under the NYC Human Rights Law.  Additionally, the NYC Commission on Human Rights is charged with creating its own training requirements, which have not yet been issued, and may differ from the training protocols set forth by the State.

Overall, these potential discrepancies and outstanding issues suggest that the State materials may need to be supplemented and are subject to change before the October 9 effective date.  Employers are encouraged to submit comments before September 12 here and encourage the State to narrow the scope of the sample materials.

Our earlier post on the Mandate is available here, and our posts on the NYC sexual harassment prevention updates were posted in April and earlier this month.