New York State has, at long last, released its final model sexual harassment policy and training materials. Back in April, Governor Cuomo signed into law a bill requiring all state employers to adopt what might be the most stringent mandatory anti-sexual harassment policies in the country and to provide sexual harassment prevention training to all of their employees on an annual basis.
The state first released a sample model policy and training on August 23rd for public comment and review. Then, on October 1st, the state finally released the official versions of the training materials and the model policy. These materials are only a sample, so employers are free to substitute their own materials so long as they meet or exceed the minimum requirements for the new policies. Those minimum requirements are also available on the DOL’s website. However, the state Department of Labor (DOL) has said that adopting the model policy will be sufficient to satisfy employers’ obligations under the new law.
One question that will arise when designing a prevention training, or even when implementing the DOL model training materials, is what the training should actually look and sound like. The DOL model training is available in one of two formats: a PDF document in the form of a script – apparently designed to be read by a presenter to a group of employees, or a power point presentation. It is important to remember that the training must be “interactive” to meet the minimum specifications of the law. Merely providing employees the power point presentation or the script is clearly insufficient.
The DOL has specified four ways in which employers can, relatively simply, make their training regimens comply with the interactive requirement:
- having the training be presented in person and the presenter either asks questions of the employees or leaves time throughout the presentation for employees to ask questions;
- for online versions of the training, enabling employees to have the option of asking questions and receiving an immediate response;
- for online versions, forcing employees to periodically answer questions accurately to proceed with the training; or
- at the conclusion of the materials requiring employees to submit a “feedback survey” discussing what they learned.
The DOL did not specify what a feedback survey might look like.
The date for complying with the new requirements for adopting a sexual harassment prevention policy is still October 9th, just eight days after the model policy was officially released. However, the state made two significant changes regarding the timeline for having all employees undergo the anti-sexual harassment training. The date for existing employees to undergo training has been shifted back from January 1 to October 9, 2019 and the 30-day deadline for new employees to undergo training has been scrapped in favor a requirement that they undergo training “as quickly as possible”. Presumably, these shifts were made in order to give businesses more flexibility in adopting a training program that works for their particular organization.
It will be important for employers to keep a close eye on the development of these rules for a couple reasons. Firstly, because any issues involving sexual misconduct are subject to a high degree of politicization and this certainly does not appear to be waning any time soon. Secondly, because New York’s new law is something of an aberration among the states; how it will play out in practice cannot be easily determined by looking at the experience of prior adopters. Thirdly, and most starkly, because the Governor said on a phone call with reporters this week that the state hadn’t “even concluded the regs on the law that we passed.” Indicating that further guidance from Albany about the requirements might be on the horizon.