United States: New York State Department Of Labor Releases Draft Sexual Harassment Prevention Materials

The New York State Department of Labor (DOL), in consultation with the New York State Division of Human Rights (DHR), has released drafts of its model sexual harassment prevention policy, complaint form, and harassment prevention training program. In addition to releasing these proposed materials, the DOL has also released a FAQ document and documents setting forth the minimum requirements for sexual harassment prevention policies and training programs. The draft templates are open for public comment until September 12, 2018, after which the DOL will review comments, make any revisions it deems necessary, and release final versions of these materials. This release comes as the October 9, 2018 deadline for compliance approaches and as part of a comprehensive sexual harassment law passed earlier this year which we wrote about extensively here. We highlight some important takeaways from the newly-released materials below.

Sexual Harassment Prevention Policy

Employers hoping for a more streamlined model policy will likely be disappointed, as the DOL's proposed sexual harassment prevention policy is extensive, comprising seven single-spaced pages. If adopted in its current form or substantially its current form, it will force employers to consider the following questions:

• Where Should the Policy Reside? Given its size, should the policy stay in a handbook or should it now become a standalone policy? If your handbook comprises just 30 pages, do you want one policy to take up nearly a quarter of the document? Further, because employers must post the policy "prominently in all work locations" (whether in hard copy or electronic form) and provide it to all employees "upon hire," it may be useful to break the policy out into a standalone document, although for many employers, keeping it in the employee handbook – a central depository for all employment-based policies – may be preferable, whether in the handbook itself or appended to the same.
• Should the Policy Be Expanded to Cover Other Types of Discrimination and Harassment? The model policy, for the most part, focuses on sexual harassment and not on other forms of discrimination and harassment (i.e. race discrimination or race-based harassment). Employers must consider whether to address these related issues in a separate policy. We generally recommend drafting a policy that covers all types of discrimination and harassment given that many of the same concepts apply (i.e., the definition of workplace, compliant reporting, investigation procedures, disciplinary action, retaliation, etc.), but employers will have to determine a structure that works best for them.
• Should the Policy Apply Uniformly to All Employees? Many employers have employees working outside of New York State. Should this extensive policy apply to these employees as well, even if compliance standards in other states are less stringent? Further, many New York State employers are also subject to New York City law, which has even more stringent compliance standards. Should employers revise this model policy to account for those more stringent standards or should employees in different locations be subject to different policies? We generally recommend that employers create a uniform policy where possible.
• Should I Obtain Written Acknowledgments of Receipt of the Policy? If the policy is contained in the handbook, typically the employer requires employees to sign off on the policy by specifically referencing it in the handbook acknowledgment. But if the employer shifts to using a standalone policy, obtaining an acknowledgment of receipt may be more challenging as it adds to the employer's administrative burden. While there is no statutory requirement to obtain a written acknowledgment, we recommend that employers still do so, whether in hard copy form or electronically, because it confirms that the employee is aware of and will abide by the policy, and it adds an additional layer of protection for employers in connection with a discrimination proceeding.
• How Should I Account for the Fact That My Policy Covers More Than Just My Employees? The DOL proposes to apply its model policy not only to employees, but also to "applicants for employment, interns, whether paid or unpaid, contractors and persons conducting business with [Employer Name]." The reason it likely did so is because the New York State law now makes it an unlawful discriminatory practice for an employer to permit sexual harassment of "non-employees." But in proposing to proceed this way, the DOL does not appear to account for the distinction in the type of relationship between the employer and service provider, nor does it account for the fact that employers typically do not provide the employee handbook to applicants and independent contractors (and other third party service providers) for the simple reason that they are not employees. In fact, an employer's provision of an employee handbook to an independent contractor could be used against the employer in the event of a dispute over the contractor's classification. Further, employers typically provide appropriate EEO and related statements to applicants in application materials. In any event, while there is no explicit requirement that employers distribute a sexual harassment policy to third parties, employers are still well advised to do so given the language in the model policy. Employers should also consider including appropriate disclaimers and distributing the policy in a manner that confirms non-employees' status. For example, in the case of contractors, the employer should make clear that despite the application of this policy to them, it does not create an employment relationship, and they should consider distributing the independent policy with other related engagement documents (i.e. the engagement contract, a non-disclosure agreement, etc.) rather than providing the entire employee handbook to the contractor.

The language of the model policy also raises other issues that employers will need to consider:

• What is Zero Tolerance? I Don't Use That Term in My Current Handbook. While the policy mandates "zero tolerance" of sexual harassment by employers, employers should be aware that "zero tolerance" in this context does not mean that an employer must automatically terminate the employment or engagement of an individual who is found to have engaged in harassment. Instead, it means the harasser will be subject to some form of disciplinary action, up to and including termination of employment or their engagement.
• The Model Policy Says I Can Be Liable Anytime Someone Harasses. Is That True? The model policy includes a sentence that reads: "Sexual harassment is offensive, is a violation of our policies, is unlawful, and subjects [Employer Name] to liability for harm to victims of sexual harassment." This statement may go too far, as employers are not automatically subject to strict liability in all cases because of the conduct of their employees. For example, under New York State law, an employer is not necessarily liable where a co-worker harasses the employee unless the employer was aware, or should have been aware, of the harassment and failed to take steps to adequately remedy it. Perhaps the final policy released after the comment period will provide a little more nuance on this issue.
• Can I Tailor My Complaint Reporting Policy Differently Than the Model Template? The model policy sets forth its proposed method for reporting claims. For example, it encourages individuals to report misconduct to "a supervisor, manager or [person or office designated]." However, many employers direct employees to complain by way of a structured order to account for their specific reporting structures and to better identify and investigate complaints of discrimination and harassment. For example, first employees may be encouraged to make a complaint to a designated individual/office, or alternatively to their manager/supervisor, and if they are not comfortable doing so, to other appropriate members of management. The model policy is unclear on whether employers may implement this slight variation on the reporting procedure in their policies. The takeaway is clear however: because the model policy encourages employees to complain to anyone with managerial or supervisory authority, employees with that authority must receive appropriate training around identifying and reporting complaints for investigation. Further, many policies suggest that an individual first seek to address the behavior directly with the alleged harasser if they are comfortable doing so, since often times this can resolve the issue immediately. Employers whose policies contain this language should be sure to emphasize that this step is not required, but is merely optional.
• Are My Investigative Procedures Aligned with the Model Policy? The model policy sets forth its preferred method for investigating claims, and employers should make sure that all designated personnel have received adequate training on how to investigate claims consistent with the standards set forth in the policy, including how to obtain and preserve all relevant documents and document the investigation properly.

Model Complaint Form

The model complaint form is straightforward and primarily aimed at collecting basic identifying information, such as the nature of the complaint and the identity of the alleged harasser and witnesses. However, like the model policy, it is drafted in a way that will require employers to address several issues:

• Should I Limit the Form to Sexual Harassment Complaints Only? Employers should consider whether to encourage employees to utilize the form to submit complaints about any type of discrimination and harassment, not just sexual harassment, which is an approach we would recommend generally.
• Should I Include the Model's Optional Questions? The model form includes optional questions, including whether the employee has previously made complaints to the employer, filed a charge or complaint with an administrative agency, filed a lawsuit, and hired an attorney with respect to the complaint. Employers not using the template will have to consider whether to include these questions on their customized form. We have no objection to their inclusion because they provide additional information which may aid in the investigation or alert the employer to other conduct that should be reviewed and addressed.
• How Do I Address an Employee's Request to Keep the Investigation Confidential? The form allows an employee to request that the employer conduct the investigation in a "confidential" manner. Employers, however, can only commit to conducting an investigation in a confidential manner to the extent possible, and they cannot guarantee wholesale confidentiality as this could impede the investigation. The model policy includes language advising employees about the limitations around confidentiality, and perhaps the complaint form released after the comment period will include language addressing this point as well. Even if the form is not revised, we recommend that employers address this distinction in their own form.
• Where Should My Complaint Form Reside? Finally, as with the model policy, employers will need to consider how best to make the complaint form available to their employees. They can append it directly to the policy or handbook, direct the employee to retrieve it from human resources or another designated person, make it available electronically, or some combination of the above.

Sexual Harassment Prevention Training Program

The draft training program's release raises several important issues for employers to consider, including:

• When Do I Need to Conduct Training? The instructions section of the draft model training program states that "employees should receive training by January 1, 2019," while the FAQ document states that "all employees must complete the model training or a comparable training that meets the minimum standards by January 1, 2019." At this time, we are proceeding as if the DOL will mandate initial training by January 1, 2019, which means that employers will have less than 90 days to conduct training after the law goes into effect on October 9, 2018. This is a significant development for employers who were planning on completing the first annual training cycle sometime in 2019, including for those employers who had planned on waiting until after April 1, 2019 to satisfy both the NYS and NYC's first annual training cycle requirements concurrently. Employers should give due consideration to conducting training at a time when it will least disrupt their operations, and where every employee will be able to attend, particularly as the guidance indicates that there are no exceptions to an employer's obligation to train all of its NYS employees. For example, if an employer waits until late December, many employees may be away on vacation, leaving the employer unable to satisfy its compliance obligation to train every New York employee.
• Do I Really Have to Train All New Hires So Quickly? The DOL has also taken the position that employers must conduct training for any new employee within 30 days of hire. This requirement appears nowhere in the law and adds a significant new burden on employers (including NYC employers who have 90 days to train new hires under the NYC law). We will wait to see whether and how the DOL addresses this issue after the comment period concludes.
• Who Do I Have to Train? Basically any employee that provides services to you in New York. The DOL is taking a very expansive view regarding which employees must receive training. In the FAQ document, the DOL's response to the question, "What about temporary / transient employees? If someone just works for one day for the employer, or if someone works for just one day in NY?" states that "Employers are required to ensure that all employees receive training." While not answering the question directly, the DOL appears to be indicating that when in doubt, employers should err on the side of caution and provide training to any employee that steps foot in New York to provide services even if they are providing services on limited basis. But why should an employer have to provide training to an employee who works onsite for a single day? Would this mean that the employer would have to pay the employee a full day's wages for his or her services and then require them to attend training on a separate day and pay them to attend that training? Further, the way the DOL phrases the question, are they implying that out-of-state workers would have to receive training if they are on a short-term assignment in New York? We are hopeful that the DOL provides additional guidance here given the potential burden employers would face. Finally, while there is no requirement that the employer train contractors with whom it engages, it should consider taking steps to, among other things, ensure that the contractor is familiar with the prohibitions against sexual harassment, and that if the contractor has its own employees, that the contractor has provided the legally mandated training before it may commence the engagement with the employer.
• Do I Really Have to Provide the Training in a Language Other Than English? The DOL states that "employers should provide employees with training in the language that is spoken by their employees." We likewise hope that additional guidance is forthcoming here, since it is unclear whether the DOL is creating a dual or multi-language training requirement where an employer's workforce speak languages other than English, and because of the burden this would place on employers. For example, it is unclear what "the language [] spoken by their employees" actually means – is it the individual employee's primary language, the language spoken when providing services on the employer's behalf, or some other variation? Is it the language that a sufficient majority of employees speak? Will the employer be required to provide the training in another language only if DOL makes the training materials available in that language?
• How Long Should the Training Program Run? The DOL did not recommend or mandate a specific duration of time for the mandatory training sessions (e.g., 90 minutes or 2 hours, etc.). Employers will have to determine a running time that effectively covers the minimum training standards set forth by the DOL and demonstrates a real commitment to eliminating sexual harassment in the workplace, while still being mindful of their operations and employees' time constraints.
• Do I Have to Use Any Particular Materials in Delivering the Training? At this time, the DOL has only released a draft training "script" and accompanying PowerPoint presentation. Although the DOL indicated it will release a "video presentation," it is unclear whether that presentation will serve as a sufficiently interactive e-learning module that employers may utilize to fully satisfy the training requirement. Regardless of whether it does, employers should use the "script" and PowerPoint presentation – which address sexual harassment only – as a starting point and strive to do more with their training by having an appropriately-customized live or web-based program that:
  
  
  • Trains employees regarding the employer's policies prohibiting discrimination and harassment and professionalism in the workplace more generally and not just around sexual harassment;
  • Satisfies the training requirement under other applicable laws to the extent possible. For example, employers subject to both the NYS and NYC anti-harassment laws must be mindful that the NYS law differs slightly from the NYC law, and any training program must account for these differences. By way of illustration, employers subject to the NYC law would have to incorporate "bystander intervention" training into their program and employers looking to satisfy both of those jurisdiction's laws in one training session would have to customize their program accordingly.
  • Addresses the nuances of the employer's business, the industry in which it operates more generally, and modern workplace dynamics. For example, the model program includes six "case studies" which present hypothetical scenarios illustrating the concepts in the training, along with questions for discussion. However, these case studies may not be appropriate or effective for all workplaces, and employers should consider creating their own customized case studies, as employees may gain more from discussing examples that are more closely related to their own work environment. For example, employees may be better served discussing hypotheticals that present the use of social media to harass another employee or that account for more subtle forms of discrimination or harassment.
  • Accounts for the different expectations and responsibilities of supervisors, managers, and employees around sexual harassment in the workplace. While the model training does not differentiate between training delivered to management and employees, employers should consider conducting separate training sessions for management and employees whereby they will, among other things, customize the messages or frame certain issues differently to account for the different audiences. In the case of management, employers should strongly consider tailoring their programs to ensure that they receive adequate training on their responsibilities to model behavior, detect and report misconduct, and avoid retaliating against employees.
  • Demonstrates Buy-In From the Top. Employers should consider how best to incorporate the C-level leadership in rolling out the new training and policies, to take advantage of the opportunity for employee engagement, morale-building, and emphasizing that the initiative is being taken seriously from the top down.

* * * * *

We will update you with any additional guidance and clarification on the issues above as it becomes available. In the meantime, we strongly urge you to be proactive in meeting the upcoming compliance deadlines, and of course, our employment attorneys are standing by ready to assist you in those efforts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.