The New York State Department of Labor (DOL) recently released updates to the state’s model sexual harassment prevention materials, including its model sexual harassment policy as well as its model sexual harassment prevention training slides and training script. The state has also issued a new training video and other updated resources. All templates and resources are designed to help employers comply with state law. Employers should review their current policies and trainings in light of the changes discussed in this alert with an eye toward implementing modifications to reflect certain updates.
Since the enactment of amendments to New York State’s Labor Law in 2018 (as we previously reported), employers in New York State are required to maintain a written sexual harassment prevention policy and conduct annual employee trainings. The state is responsible for creating model documents that satisfy the minimum standards for such policies and training and is required to update and revise the documents every four years.
The 2023 revisions to the model policy and training, which are presently in effect, include an expansion of the definition of gender diversity, the addition of a new section on bystander intervention and the incorporation of scenarios regarding sexual harassment in the remote workplace.
Employers are not required to use the model policy, but their policy must meet the minimum standards set forth in New York Labor Law Section 201-g:
Notedly, the new model policy:
The model policy indicates that “[e]mployers are encouraged to tailor this policy to their individual needs, though as a minimum standard, no section in this policy should be omitted.” It remains to be seen whether the state will take the position that sexual harassment prevention policies must include all of the sections contained in the updated model policy or simply address the substance contained under those headings.
The original 2018 model policy focused on preventing sexual harassment and gender discrimination and referenced the prohibition against discrimination for all protected classes only in a footnote. The revised model policy, however, references all protected classes in the body of the policy and states that (1) the “methods for reporting and investigating discrimination based on other protected identities are the same” and (2) the prevention policies outlined “should be considered applicable to all protected classes.” The state’s inclusion of these provisions is notable given that New York Labor Law 201-g itself does not specifically incorporate requirements for addressing discrimination, harassment or retaliation other than that constituting or related to sexual harassment.
The DOL also revised its model training materials. As a reminder, all New York State employers are required under Labor Law § 201-g to provide employees with sexual harassment prevention training annually. Only employees who work or will work in New York State need to be trained. However, an individual based in another state who also works in New York State for a portion of their working time must participate in training that complies with New York law. During the training, employers must also provide employees a notice containing the employer’s sexual harassment prevention policy and a copy of the information presented at the training.
The revisions to the model Sexual Harassment Training Script and Slides reflect the primary changes to the model policy and include:
The state created a new video, but the video itself is not considered interactive, so employers are required to supplement watching the video as their training with an additional training element. The training video can be paired with a sexual harassment prevention training assessment form, accessible on the DOL’s “Combating Sexual Harassment in the Workplace” webpage, to fulfill the interactive element. There are also updated FAQs on various questions about implementation of the policy and training.
In good news for employers operating in New York City, the state has specifically advised that employers can comply with both the New York State and New York City training requirements by using the New York City Commission on Human Rights’ online training, currently available here.
Employers should review and update their existing sexual harassment prevention policies and training materials with the 2023 revisions in mind, and continue to comply with all policy distribution and training requirements. As a reminder, employers are required to provide the sexual harassment prevention notice, policy and training materials in both English and, as detailed in the FAQs, in select other languages for employees whose identified primary language is not English.
We will continue to monitor guidance from the state as to what steps employers need to take and what employers’ obligations are under the revised model policy and training. For questions or concerns regarding any of the issues raised in this alert, please contact a member of Kramer Levin’s Employment Law Department.