New York State has released a draft sexual harassment policy for public and private employers, who must either adopt or build on the “minimum standard” model.
The model sexual harassment prevention policy, as the Cuomo administration called it, is part of legislation passed earlier this year to reduce the prevalence of discrimination and harassment in the workplace.
New York Gov. Andrew Cuomo also issued an executive order that will shift all complaints of sexual harassment at state agencies to the Governor’s Office of Employee Relations.
“New York continues to send the message loud and clear that we will not stand for discrimination or sexual harassment of any kind,” Cuomo said in a statement. “With these actions, we are building upon the nation’s strongest anti-sexual harassment laws and ensuring that this intolerable workplace conduct is addressed swiftly and aggressively across the state.”
The model policy is a floor for employers to build on. There are several provisions that must be included in any policy created by employers, which are required by the new law to adopt a policy by Oct. 9.
Employers have to provide a form for employees to report complaints of harassment and develop a procedure for investigating those complaints that ensures due process for all parties involved.
Employers also have to give employees information about federal and state law on workplace sexual harassment, including remedies available to victims and a statement that local laws may also apply. That information must include examples of conduct that would constitute unlawful sexual harassment.
The policy also has to clearly state to employees that sexual harassment is considered a form of employee misconduct under law and that employees or managers who take part in or knowingly allow such harassment will be disciplined. Employers also have to make clear that there will not be any retaliation against employees who either complain about sexual harassment or help an investigation into such harassment.
Employers will also have to provide sexual harassment prevention training to each of their employees. According to the state, that training has to be interactive and must explain each part of the model policy, or whatever policy the employer chooses to adopt beyond the minimum standards.
Melissa Osipoff, a partner at Fisher & Phillips in New York, said that part of the new law will likely impact employers most.
“Companies have been all over the place in the past. Some companies conduct sexual harassment training for employees. Others do training of just management employees and others do no training at all,” Osipoff said. “Now, all New York employers have to provide sexual harassment training.”
Companies will have to be able to train their employees on sexual harassment by Jan. 1, 2019.
The standards were born from legislation passed earlier this year to address the ongoing #MeToo movement. Lawmakers were criticized for meeting behind closed doors to discuss the policy before unveiling it just hours before it came up for a vote.
Much of that criticism came from the Sexual Harassment Working Group, a group of former legislative staffers who claim they experienced sexual harassment and discrimination while working in the Legislature.
They said on Friday the new actions, which will have a public comment period until Sept. 12, were drafted in much of the same way.
“Our basic issue is the process. That is paramount. To have a good outcome, we want a good process, and a good process is not rushed. It’s very inappropriate. The comment period is two and a half weeks,” said Rita Pasarell, a member of the working group.
The group wants the Legislature to hold hearings on sexual harassment to build on the law passed in April. There are already parts of the model policy they want changed. One part ensures confidentiality, for example, but adds the disclaimer that investigations may only be confidential “to the extent possible.”
“There are many, many places in all three of those forms where it’s lacking for victims and witnesses and sometimes putting victims in harm’s way,” Pasarell said.
The regulations could still be changed following the public comment period, but Osipoff said employers should use the draft documents to start thinking about what they will have to do to comply with the final result.
“We do still have to await the final product before we can close the books on this, but given the implementation date is quickly approaching employers do need to start taking steps now to prepare,” Osipoff said. “They need to review their policies, think of what updates they might need to make with the model policy.”