DON’T FORGET: New York Sexual Harassment Training Due Oct. 9th

Both NY State and NY City have announced regulations prohibiting sexual harassment in the workplace. Each require a policy and annual training.

NY State’s first sexual harassment training deadline for employees and supervisors is October 9, 2019. Therefore, NY employers should complete training before this date to remain in compliance with both city and state requirements. Don’t forget that new hires that join after your training are required to receive training as soon as possible.

Highlights on each regulation are below as a refresher.

NYS Combating Sexual Harassment:

• Policy prohibiting sexual harassment. Effective August 12, 2019 every applicable NY employer must provide employees with the employer’s written sexual harassment prevention policy upon hire and at every annual sexual harassment training. The policy must be provided in English and in the language identified by each employee as their primary language. 
• Implementation of a complaint form. Model form provided at the above state website.
• Annual employee and supervisor training required by no later than October 9, 2019, and annually thereafter (includes mid-year hires and substitutes). The state has provided model training guides, power point slides, and YouTube videos. Tip: The videos alone do not meet the requirements of being interactive.
• New requirements coming soon:
  • Effective October 11, 2019:
    • A private employer is defined as any person, company, corporation, labor organization, or association.
    • Mandatory arbitration clauses related to discrimination are prohibited and nondisclosure agreements related to discrimination are prohibited.
    • The state’s harassment provisions are expanded as follows:
      • It is unlawful for an employer to subject any individual to harassment because of their age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status (protected status), for opposing illegal behavior, or for filing a complaint, regardless of whether the harassment would be considered severe or pervasive under precedent applied to harassment claims. Domestic workers are afforded these protections as well.
      • Such harassment is an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions, or privileges of employment because of the individual’s membership in one or more of those protected categories.
      • Unlawful discriminatory practices relating to non-employees are expanded, as well, as opposed to only protecting non-employees against sexual harassment.
      • The fact that the individual did not complain about the harassment to the employer is not determinative of whether the employer is liable.
      • An employee is not required to demonstrate the existence of an individual to whom the employee’s treatment must be compared.
      • It is an affirmative defense to liability that the harassing conduct does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.
  • Effective February 8, 2020, the state’s Human Rights Law (at N.Y. Exec. Law § 292) extends its coverage to all employers within the state, as opposed to excluding those with fewer than four employees.
  • Effective August 12, 2020, complaints of sexual harassment in employment must be filed within three years after the alleged unlawful discriminatory practice.

Stop Sexual Harassment in NYC Act Requirements:

• Notice in English AND Spanish to be posted and distributed at time of hire: https://www1.nyc.gov/site/cchr/law/sexual-harassment-factsheetsposters.page
• Annual employee training required no later than December 31, 2019 and annually thereafter (Includes mid-year hires and substitutes): https://www1.nyc.gov/site/cchr/law/sexual-harassmenttraining.page
  • NYC announced its online training meets the NYS requirements; however, employers outside NYC are not encouraged to use this training because of the broad differences in the way sexual harassment is defined.

This information is general and is provided for educational purposes only. It reflects Austin & Co.,’s understanding of the available guidance as of 9/12/19 and is subject to change. It is not intended to provide legal advice. You should not act on this information without consulting counsel or other knowledgeable advisors.