On April 11, 2023, the New York Department of Labor (DOL) published a final version of its revised sexual harassment prevention model policy. The updated model prevention policy contains several substantive updates from the prior 2018 version.
Under state law, every employer is required to adopt a sexual harassment prevention policy. As a result, employers should review the updated model prevention policy as it may require revisions to any existing policy. Key highlights of the revisions include:
- A stronger emphasis on gender identity discrimination, including a statement that discusses the “gender spectrum,” and defines “the three most common ways people identify” as cisgender, transgender and non-binary;
- A new statement on bystander intervention, which encourages witnesses to report observed harassment and inclusion of applicable intervention methods;
- Reference to broader discrimination as the current model policy focused mostly on “sexual” harassment, with no reference to other forms of unlawful discrimination or harassment – the updated model policy includes new language stating that “discrimination of any kind, including sexual harassment” is prohibited;
- An expanded discussion of New York’s broadened definition of harassment – discussion of what constitutes harassment is more detailed, specifically noting that the behavior need not be “severe and pervasive” to be illegal and that employees and covered individuals should not feel discouraged from reporting harassment because they do not believe it is “bad enough”;
- New retaliation examples which include specific examples of actions that may be deemed retaliatory conduct;
- Language related to remote work throughout the policy, including ways in which remote workers can perpetrate or be the victims of harassment over virtual platforms and messaging apps;
- Reference to the new sexual harassment prevention hotline, in addition to, a statement on the type of assistance the hotline can provide; and
- More emphasis and access to external remedies using the provision of hyperlinks for filing complaints with the various enforcement agencies.
The state also updated its’ model training materials (slide deck and transcript) to incorporate some of the updated information and concepts that are included in the updated model prevention policy. As a result, the training is longer than the prior version. The DOL has also provided a worksheet that employees can use to answer questions about the scenarios in the model training. As a reminder, state law requires employers to provide annual training to all employees. The training must be interactive and include:
- An explanation of sexual harassment consistent with guidance issued by the DOL in consultation with the Division of Human Rights (DHR);
- Examples of conduct that would constitute unlawful sexual harassment;
- Information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
- Information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
- Information addressing conduct by supervisors and any additional responsibilities for such supervisors.
Next Steps for Employers
Employers are not required to adopt the state’s model prevention policy but must ensure that the policy they adopt meets or exceeds the minimum standards under Section 201-g of the Labor Law. Employers should review their current sexual harassment policy against the updated model policy and determine whether any updates are necessary. While all the updates in the model policy do not have to be included, the inclusion of information about the new sexual harassment hotline is strongly recommended. Employers who opt not to use the language in the model prevention policy may wish to seek additional guidance from their legal counsel to ensure that their policy meets the minimum standards. After making any policy updates, it is a best practice to have employees acknowledge receipt of the updated policy.
In addition to the requirement to implement and maintain a sexual harassment policy, every employer in New York State is required to provide employees with annual sexual harassment prevention training. An employer that does not use the model training developed by the DOL and DHR must ensure that the training they use meets or exceeds the minimum standards. Employers who have their own customized training should review their existing content against the updated training materials to determine if any updates are needed.
Employers with employees in New York City may have additional obligations. The New York City Commission on Human Rights has launched an online training program for employers based in New York City that is compliant with New York State requirements. Refer to the NYC training program.
How HR Works Can Help
HR Works is currently reviewing/updating our Harassment Prevention policy and will notify current Virtual Helpline and HR Strategic Services clients when the policy becomes available. In the interim, current clients who have questions regarding these changes may contact the Virtual Helpline or your designated HR Consultant.
Non-HR Works clients may reach out to learn more about HR Works’ services including employee handbooks, customized training and our LMS system by visiting our website and completing a “Contact Us” form or calling us toll-free at 1-877-219-9062.