It is that time of year again! With Andrew Cuomo stepping down following an investigation into harassment allegations against him, it is a good time to remind New York (NY) employers that sexual harassment prevention training needs to be conducted annually. Employers also need to keep in mind that all newly hired employees need to be trained “as soon as possible” after their start date. This mandate creates an ongoing training requirement when there are new hires in addition to the annual training requirement for existing employees. Employers must also provide a copy of their policy on harassment prevention to new hires as part on their onboarding process and again, at the time of training, along with a copy of all training presentation materials.
The potential for employer liability makes it imperative that employers are effectively communicating their commitment to a harassment-free work environment early on, and the best way to achieve this is with a strong policy and comprehensive training. To comply with these requirements, employers should have a thoroughly developed process for ensuring that all employees are properly trained and apprised of the policy.
In addition to being mindful about the state’s sexual harassment prevention requirements, it is often helpful to know what questions are being asked by other employers surrounding compliance with the state law as it is common for employers to have similar questions. Below are some recent frequently asked questions (FAQs) we have addressed related to the state’s sexual harassment prevention training requirements.
Question 1: We’re hearing a lot in the news with Andrew Cuomo stepping down following an investigation into harassment allegations against him. What specifically is still required in NY?
Every NY employer (including public, private, and not-for-profit) is required to adopt a sexual harassment prevention policy. The state developed a model policy that can be used. Employers that do not adopt the model policy from the state must ensure their own policy includes minimum elements outlined by the state including defining harassment, reporting procedures, the complaint process and rights and remedies. The policy (and training) must be provided in the employee’s primary language if that state has published model materials in that language.
Additionally, employers are required to publish a complaint form for employees to report alleged incidents of harassment. Again, the state has a model complaint form that employers can use. It’s important to note, however, that employees are not mandated to report complaints in writing. Employers are obligated to take action and investigate whether the complaint is made orally or in writing.
Similar to the model policy and complaint form, the state published model training materials for employers to use. Employers can develop their own training, as long as it meets the minimum requirements outlined by the state. One important requirement of the training is that it must be interactive. Simply providing training materials or having employees watch the sexual harassment prevention training video published by the state will not meet the requirement to be interactive. To be interactive, employers must: ask questions of participants, allow questions to be asked by participants (with answers provided in a timely manner) and require feedback from participants about the training and materials presented.
Question 2: How do small organizations without a dedicated HR Department ensure they have the right policies, procedures and training in place?
The good news is that the state has a website with model forms, policies, training materials and FAQs that make it relatively easy for employers to comply.
The challenge often is designating that point person to review and understand the information, and then execute on it. Even more challenging is ensuring that designated individual is trained on what constitutes harassment and how to conduct prompt, thorough investigations of allegations. To overcome that challenge, small organizations will often outsource some or all of their HR functions to a third-party HR consulting firm, such as HR Works, or may engage their legal counsel to assist with these requirements.
It’s important for all employers, regardless of their size to be prepared to respond to and address allegations of harassment in the workplace. One important point about sexual harassment in NY is that NY lowered the bar on what constitutes workplace harassment in October 2019 when the Human Rights law was amended making harassment unlawful if it’s anything more than “petty slights or trivial inconveniences” vs. the standard that the conduct be “severe or pervasive” (behaviors which a “reasonable person” would find to constitute a hostile work environment) as previously held by courts.
Question 3: What’s the recourse for an employee of a very small employer if they have concerns about the owner or head of the organization? Where do they turn when the person engaging in the inappropriate conduct “runs the show”?
As previously mentioned, small organizations that don’t have a dedicated HR department will often partner with an HR consulting firm to outsource their HR support. This is a great option that can provide a neutral, third party for employees to bring concerns. The goal should be to have complaints and concerns addressed internally, if possible. Otherwise, employees will likely go outside and file a claim with the Division of Human Rights (DHR), Equal Employment Opportunity Commission (EEOC) or possibly hire an attorney and file a lawsuit.
The NY DOL Preventing Sexual Harassment website includes a section for workers that provides an overview of the requirements and has an FAQ for Workers that provides information on how to file a complaint with the NY DHR.
Next Steps for Employers
Employers are encouraged to review the information, including model notices, training materials and FAQs which are available on the state’s sexual harassment prevention website to ensure that their policy and training meets the minimum requirements.
Multi-state employers should also be mindful of any similar obligations that may be required for employees outside of NY. Even in states where sexual harassment training is not mandatory, conducting regular employee training is a best practice.
How HR Works Can Help
HR Works offers an Employee Handbook Service which allows clients to work with and HR Consultant to develop an employee handbook that complies with federal and state law, including all state specific requirements for a policy on sexual harassment prevention.
HR Works also offers sexual harassment prevention training which meet the state’s training requirements, including an online Learning Management System (LMS). Providing employees access to an LMS is a great way for employers to easily comply with these requirements. For additional information on the benefits of an LMS, contact HR Works today
Tee Nelson Sr. HR Compliance Analyst
Janine Corea Vice President, HR Total Solutions