The wait is over. The New York State Department of Labor (DOL) just released its final guidance with respect to New York State's new anti-sexual harassment law. The release includes final templates for the model sexual harassment prevention policy, complaint form, and harassment prevention training program. In addition to these templates, the DOL has also released a revised Frequently Asked Questions guide, documents setting forth the minimum standards for sexual harassment prevention policies and training programs, a poster and a compliance toolkit.
The final guidance reflects some of the feedback the DOL received during the public comment period that ended a few weeks ago. Employers will be pleased with the guidance to an extent, as the DOL did backtrack in some areas, especially with respect to training deadlines. Employer frustration persists, though, as employers now have only a week to update and implement their new policies, and the DOL did not address employers' concerns regarding other key compliance issues. Most notably, the DOL:
- Confirmed that employers must implement new harassment prevention policies by October 9, 2018.
- Extended the deadline for training all employees from January 1, 2019 to October 9, 2019.
- Eliminated the requirement that new employees must be trained within 30 days.
We highlight some other important changes, considerations, and next steps for employers below.
1. Immediate Action Item: Employers Must Distribute Updated Sexual Harassment Prevention Policies No Later Than October 9, 2018.
The DOL softened its stance in several areas in its final template harassment prevention policy (and the accompanying FAQ), including by:
- Removing the "Zero Tolerance" language that was included in the draft template policy. Zero tolerance typically signifies that an employee will be terminated regardless of the type of infraction. While the final template policy states that an employer will "not tolerate" sexual harassment, the elimination of the Zero Tolerance language confirms that employers retain the flexibility to investigate and determine appropriate remedial and/or disciplinary action according to the circumstances, including implementing corrective action that may fall short of termination.
- Providing greater recognition to employer internal complaint procedures. The final template includes a slight revision to the language regarding employees' reporting options which suggests that employees should report, at least initially, potential wrongdoing using their employer's internal complaint procedures rather than external reporting procedures. While the final template policy still provides employees with the option to report their complaint to an external enforcement agency, it appears to cast this option as an alternative to internal reporting, rather than placing the two approaches on equal footing.
- Recognizing that employers need more flexibility with respect to their investigations. While the final template policy still includes extensive language specifying the contours of employer investigations, it no longer sets an expectation that an employer will complete them in 30 days. Further, it confirms that employers will conduct the investigation confidentially, to the extent possible. The FAQ also confirms that employers may utilize their own investigation procedures, provided that their policy sets forth those procedures.
- Eliminating the requirement that employers post their policy in the workplace. The draft guidance added a new posting requirement that required employers to post their entire policy "prominently in all work locations." The DOL has backtracked on this requirement and now encourages, but does not require, employers to post the policy or to notify employees where they can locate the policy. The DOL also released a poster that employers can post in the workplace confirming the existence of a policy and where employees (and non-employees) can locate it.
- Modifying the retaliation section to align more with applicable law. The final policy makes a small but important change stating that retaliation is any action that "could discourage" rather than "would keep" a worker from coming forward to make or support a sexual harassment claim. While this doesn't track perfectly with applicable state and federal law, it moves the standard a lot closer. Further, the final template policy now recognizes that employees are not protected against retaliation if they intentionally file false complaints.
With the release of the final template policy now behind us, employers have mere days to come into compliance. In updating their policies, employers should ask themselves the following important questions:
- Should I adopt a policy that covers discrimination and other types of harassment (e.g., race-based harassment)? While the DOL's policy focuses primarily on sexual harassment (namely because it was tasked with issuing a template to comply with a new anti-sexual harassment law), the final policy contains a footnote stating that harassment and/or discrimination on the basis of other protected categories beyond sex is also unlawful. In our view, this does not go far enough and employers should consider designing a comprehensive policy that prohibits discrimination and harassment, including sexual harassment as one important component, particularly because the complaint and investigation procedures and prohibition against retaliation would apply to instances of discrimination and harassment generally just the same as they do to instances of sexual harassment.
- Should I adopt a uniform policy covering workers in all states? 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 while this may not be possible in all cases, employers should strongly consider creating a uniform policy.
- Where should my policy reside? Should employers incorporate the policy into their handbook or make it a standalone policy? For many employers, the convenience of keeping this policy in the employee handbook will prevail, since it streamlines distribution, tracking, and updating of documents as well as acknowledgment of receipt. However, some employers may already have a standalone policy and prefer to keep it that way, while for other employers, their circumstances may dictate separating the policy from the handbook. In the latter case, an employer may be in the process of updating an entire handbook which may not be ready for release before the October 9, 2018 deadline, and a standalone policy will serve as an appropriate stop-gap measure. For those employers that decide to distribute the policy electronically, the DOL requires employers to ensure that employees can print a copy for their own records. Further, as mentioned above, employers should consider posting a notice informing employees where their policy can be located (and can use or customize the DOL's model poster to do so).
- Should I obtain acknowledgments of receipt? 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 (and the guidance confirms this), 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 the event of any future discrimination or harassment proceeding.
- How should my policy account
for "non-employees"? If you recall, earlier this
year New York State updated its anti-discrimination law (known as
the Executive Law or New York State Human Rights Law) to make it
illegal for an employer to permit sexual harassment of
"non-employees" in its workplace. Based on this change,
the DOL drafted a template policy equally to employees and
non-employees, and in the policy it defined
The problem with this draft, of course, was that only employees receive an employee handbook, and in any case, an employer cannot take disciplinary action against a non-employee; it could terminate an engagement or otherwise limit or end a business relationship, refuse a customer's patronage, or remove a visitor from its premises, but it could not terminate or suspend or otherwise affect a non-existent employment relationship. In our view, while the DOL attempts to address this issue, its final guidance does so inadequately.
The DOL retained most of the language applying the policy to non-employees (in fact, it compounded the problem by going so far as to define non-employees as "employees" – yes, you read that correctly). However, the FAQ confirms that employers do not have to distribute their harassment prevention policies to non-employees. Instead, it encourages employers to distribute or otherwise post the policy in the workplace so that non-employees can see it. This latter portion of the guidance makes sense to us. Given the change in the law, employers have every incentive to inform their non-employee relationships that they will not tolerate discrimination and harassment by non-employees against their employees, and likewise, against non-employees by their employees.
Therefore, employers may tailor their policies accordingly for their employees, but should otherwise consider whether and how to alert their non-employee relationships about their strict prohibitions against discrimination and harassment in the workplace. Employers should consider doing this via posting in areas where non-employees traffic and/or by including an appropriately-tailored policy in engagement materials and/or vendor contracts.
- Can I tailor my investigation procedures differently than the model policy? Yes. The FAQ notes that employers may use procedures that are similar, but not identical to, the investigation procedures set forth in the final template policy. Obviously those procedures must meet the minimum standards set forth by the DOL, but employers are assured greater flexibility under the final guidance. While employers do not have to include the extensive detail regarding investigations that the final template includes, their policies should outline their investigative approach.
2. Immediate Action Item: Update the Complaint Form and Make it Available No Later Than October 9, 2018.
The DOL left the model complaint form largely unchanged, although there a couple of notable revisions, including that:
- Employers need not append the complaint form to the policy itself. Employers may instead reference the form and direct employees where to retrieve it (e.g., on the employer's intranet), thereby providing employers with administrative flexibility. For some employers, appending the complaint form to a standalone policy or at the end of the handbook is administratively feasible or even preferable; for others, the preference will lie with referencing the form in the policy and directing employees to retrieve it from Human Resources, a designated person, or through electronic means.
- The complaint form invites employees to disclose whether they have engaged counsel. The final form eliminated questions regarding whether an employee has already filed a charge or complaint with an administrative agency, filed a lawsuit, and/or hired an attorney with respect to the complaint. Instead, the DOL replaces those questions with a statement inviting the employee to disclose the contact information of any retained counsel.
- The complaint form indicates that the investigation should be kept confidential to the extent possible. This was a much-needed revision from the draft form, which allowed an employee to request confidentiality. Employers should remember that they cannot guarantee wholesale confidentiality as this could impede the investigation, and should address this distinction in their own form if they opt to use one.
One final note on the complaint form: like the policy template, it is limited only to complaints of sexual harassment. But employers should consider customizing the complaint form to apply to any type of discrimination and harassment, not just sexual harassment.
3. Future Action Item: Employers Must Train All Employees No Later Than October 9, 2019.
The DOL's final guidance answered some of the most pressing questions on employers' minds since the release of the draft guidance; specifically:
- By when do I need to conduct
training? No later than October 9,
In a stunning reversal from the timeline set forth in the draft guidance, the final guidance now indicates that employers have one year (and a day) to complete the annual training cycle, or until October 9, 2019. The draft guidance had set a much earlier deadline of January 1, 2019. This reversal is consistent with the annual training period set forth in the law, and in shifting its stance, the DOL appears to have recognized the legitimate operational challenges most employers would have faced in meeting a year-end deadline (especially for employers who already conducted training sessions earlier this year in the wake of the #MeToo movement).
This is also a significant development for employers covered by New York City's new anti-sexual harassment law. New York City's separate first annual training cycle goes into effect on April 1, 2019. While the City Commission has not yet released guidance informing employers by when they must complete that cycle, at the very least, this development better positions employers covered by both laws to wait until at least April 1, 2019 to conduct training so they may satisfy both the NYS and NYC's training requirements simultaneously, rather than forcing them to conduct training at two different points in time. (We note again, however, that we have not yet heard from the City Commission on this issue, and forthcoming guidance may change the analysis.)
In setting a training date, employers should give due consideration to conducting it during a time or times 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 schedules training when employees may be away on vacation (i.e. in late August or December), it may leave them unable to satisfy their compliance obligations. Employers should also consider whether and how to discipline employees who fail to attend a training session.
- Do I Still Need to Train All
New Hires Within 30 Days? No.
Fortunately, the DOL backtracked on its 30-day new hire requirement – a requirement found nowhere in the law itself. Instead, the final guidance encourages employers to train new employees as soon as possible given that the anti-harassment laws apply to them on day one of their employment. While this is another welcome development, employers covered by the New York City law must remember that they are subject to a 90-day new hire training requirement.
- Who Do I Have to
Train? Essentially all employees providing
services in New York.
In the draft guidance we noted that the DOL took an expansive view that basically any employee who performed services at any time for the employer in New York had to receive training. More specifically, the draft guidance provided the following Q&A:
Q: 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?
A: Employers are required to ensure that all employees receive training.
The final guidance eliminated this particular Q&A, but replaced it with an equally disconcerting one. Now it reads:
Q. I am an employer based in New York State but also have employees who only work in other states. Do they need to be trained as well?
A. No. Only employees who work or will work in New York State need to be trained. However, if an individual works a portion of their time in New York State, even if they're based in another state, they must be trained.
What does "will work" mean? That we reasonably anticipate that one day they'll step foot in New York to perform services? What does a "portion of their time" mean? More than 20%? More than 50%? More than one day? What if an employee is traveling on business for just a one-week project? What if the employee is coming in for an employer-sponsored event in New York? Hopefully, the DOL will revisit this issue in the future in a way that lessens the burden on employers, including the cost. (One can imagine a scenario where the cost to train a temporary employee onsite for just a day actually exceeds his or her wages related to the services performed.) Until the DOL revisits this issue, employers may want to err on the side of caution and provide training to any employee providing services in New York, even if they are providing such services on limited basis.
Two additional, but related points. First, the final guidance does confirm that employers can satisfy their training obligations for temporary employees by verifying completion of the training by the temporary help firm. Second, the final guidance confirms that employers are not required to train non-employees. So no, as we've been asked repeatedly, you do not have to train the UPS delivery driver. In both cases however, employers should take steps to, among other things, ensure that these individuals are receiving adequate training before permitting them to provide services to or otherwise engage in a relationship with the employer.
For example, employers will want to ensure that the temporary help firm or contractor they engage is familiar with their prohibitions against sexual harassment and that they have provided their employees or have themselves received legally sufficient training before services can be performed. For those non-employees where this may not be possible (i.e., for certain visitors that come onto your premises), employers should, as mentioned above, consider posting a sign that alerts the non-employee to the employer's prohibition against sexual harassment and their ability to complain.
- Do I Really Have to Provide
the Training in a Language Other Than English?
Yes, kind of.
Other than learning that employers had only about 180 hours to update their harassment prevention policies, the other biggest disappointment in the final guidance was the DOL's confirmation of a multilingual training requirement.
In the draft guidance and now in the final guidance, the DOL takes the position that employers must "provide employees with training in the language that is spoken by their employees" and further, they must provide policies in that language. This appears to mean a language that is the employee's "primary language." The DOL promises to make materials available in other languages, but states that employers may provide training and policies in English only if such materials are unavailable (although it strongly urges employers to train in other languages anyway because, the DOL says, employers can still be liable for the conduct of their employees).
As best we can tell, this requirement is aimed at making sure employees learn about an employer's policies and efforts to protect against sexual harassment in the workplace in a language they can actually understand – an admirable policy aim. But the DOL gives short shrift once again to employers' operational realities (including the costs of satisfying this requirement), and likely will limit an employer's appetite to conduct live, in-person training – the most effective type of training towards preventing sexual harassment in the workplace.
Perhaps most disconcerting is the fact that the DOL does not provide any guidance around the requirement to provide training in another language where only a few employees speak a "primary language" other than English. What's an employer to do who wants to conduct live, in-person training? Are they supposed to hire a translator, who will make it far more expensive and slow down the delivery of the training program? That's not realistic. Does the employer scrap this type of training in favor of a pre-packaged, easily translatable, but perhaps less effective training module? Does the employer maintain the live, in-person training, but send the non-primary English speakers to separate training, which raises its own set of issues?
At this point, short of additional guidance, we recommend that employers take a practical approach here, and consider the needs of their particular workforce in light of the DOL's position that employers are ultimately responsible for ensuring that employees are trained in these policies. We recommend that employers with multilingual populations consult with counsel regarding their obligations to provide training in other languages.
- How do I satisfy the
"Interactive" training requirement? You
The final guidance confirms that employers may conduct training with a live or in-person trainer, or it may do so online. In the latter case, to make it interactive, it must include "questions at the end of a section and the employee must select the right answer;" or "the employees have an option to submit a question online and receive an answer immediately or in a timely manner." In the former case, to make it interactive, the trainer "asks the employees questions or gives them time throughout the presentation to ask questions." In both cases, the training programs must allow for feedback from the employee to turn in after the session to qualify as interactive.
The guidance also notes that:
- The employer may provide the training to employees individually or in groups, in person, via phone or online; via webinar or recorded presentation; and
- There is no recommended or mandated specific duration of time for the mandatory training sessions (e.g., 90 minutes or 2 hours, etc.).
- Do I have to use any
particular materials in delivering the training? The DOL
mostly left intact its original guidance here. The DOL has provided
a "script" and an accompanying PowerPoint presentation that employers may
utilize (and it promises to later release a video), but employers
may customize their programs accordingly, and the DOL encourages
them to do just that. We recommend that employers use the
"script" and PowerPoint presentation – which
address sexual harassment only – as a starting point and
strive to do more with their training programs by adopting an
appropriately-customized live or web-based program that:
- Trains employees regarding the employer's policies prohibiting discrimination and harassment and retaliation 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 by 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 protect against retaliation.
- Demonstrates buy-in from the top. Employers should consider how best to incorporate their executive leadership in rolling out the new training and policies, to take advantage of the opportunity to increase employee engagement, build morale, and emphasize that the initiative is being taken seriously from the top down.
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With the compliance deadline just around the corner, Mintz's employment attorneys are standing by to assist you.
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.