Today marks a big deadline for employers in New York, although not quite as big as some initially feared.
Under New York state’s new sweeping Sexual Harassment Prevention Policy, all employers must have adopted and distributed, either via paper or electronic means, a sexual harassment prevention policy by today, the effective date of the law. However, employers have another full year, until Oct. 9, 2019, to implement arguably the most onerous requirement of the new law: sexual harassment training for all employees who work a portion of their time in New York. (An earlier version required the training to occur by year’s end.)
“The requirement to actually have a policy and distribute it is new, and a lot of employers really did not have this robust policy that is now required,” said Tammy Riddle, a member in the business law and employment practices groups at Hurwitz & Fine.
In addition to mandating the implementation of a sexual harassment policy and training, the law also requires that employers establish training for new hires “as soon as possible” from their start date and perform the training on an annual basis. (New York City also recently adopted its own regulation, requiring all employers, as of last month, to display in a conspicuous place anti-sexual harassment posters and provide the corresponding information to employees.)
Employers don’t have to start from scratch, however. The state provides model policies and training programs, but Riddle said companies should be careful with those given that the model training guides, for example, include requirements that are not contained in the law.
“Every client is in a different industry, and the model training and policy guides may not be a one-size-fits-all solution,” she said. “Employers should take a look at their own policies and modify those to fit their mission and their administration.”
But it’s not just the models that require more. The law itself mandates items that aren’t typically included in employers’ training modules, said Allan Bloom, an employment and labor law partner at Proskauer Rose. These include, he added, information about the federal and state statutes governing sexual harassment, the remedies available to victims of sexual harassment, the available forums for adjudicating sexual harassment complaints, both administratively and judicially, a procedure for the timely and confidential investigation of complaints and a complaint form.
“Most employers are not necessarily looking to educate their employees on what the law is and what their remedies are,” Bloom said.
To Robert Brody, founder and managing member of Brody and Associates, a management-side labor, employment and benefits firm, the new law is just another onerous burden for employers.
These new regulations “are not going to break the bank, but it’s just one more reason that it’s a pain in the neck to do business in New York state sometimes,” he said.
Brody said that because the state’s model policy and training program require more than the law itself, many employers, who would rather just adopt what is free rather than pay to have a tailor-made policy drafted, will be engaging in onerous, unnecessary tasks. In addition, training new employees “as soon as possible” could mean training as often as every month if employers opt to train new hires within 30 days of their start date, as an earlier version required, he added.
“All of a sudden you have to train people, everyone in your organization; that’s a pretty big nut to crack,” Brody said. All the requirements are “just difficult, and I think we want to be smart about not creating such a difficult environment that we start saying, “Other states look a lot better than New York.’”
Riddle predicted that the requirement for sexual harassment prevention training to be “interactive” may present the largest challenge for employers. Although the state has made clear that a live trainer is not required, “it did state that if you’re just playing a video or handing out a document that does not provide for questions to be answered or some sort of back-and-forth, that’s not going to qualify as interactive,” she said.
Bloom said that many employers will likely start rolling out their training sometime this fall or late this year. But Riddle said some employers will apply the policy-distribution deadline to the training and begin doing so today.
“It’s a relief that they’ve got additional time with the training, but employers shouldn’t take a sit-back-and-breathe position with it because being proactive may be very helpful in preventing” alleged incidents of workplace sexual harassment, she said.