Sexual Harassment Training
The state of New York and New York City recently passed laws that require annual training regarding sexual harassment.
New York State Law
Many of the State requirements go into effect on October 9, 2018, including distribution of a compliant policy and a complaint form. Employers can distribute the policy and form electronically as long as the employee can print a copy or receive a printed copy on request. Employers can also distribute the policy to vendors providing services in the workplace, even to non-employees since the law covers these individuals; however the distribution to vendors is not a requirement.
A New York State Sexual Harassment poster is also available for display and can be downloaded here.
Important Changes to theTraining Requirement: Extended For 10 Months to 10/9/2019
The compliance period for initial training for all employees (including interns) was extended from January 1, 2019 to October 9, 2019, giving employers morel time to ensure their employees are properly trained. In addition, employers will no longer be required to train their new employees within 30 days of hire, although the state encourages this standard.
The previous guidance was vague as to whether non-employee, such as independent contractors needed to be trained, but the new guidance has clarified that only employees (including temporary employees) need to be trained. Employers must remember that any employees who work in NY should be trained, even if these employees are based out of state, provided they spend a portion of their time in New York.
Employees should still receive the training during their first year of employment. For those situations where a new hire will not coincide with your annual training, the new hire can provide verification that they completed the training during the prior year from another employer or other provider.
Employers must consider the time spent in this training as time worked for work time calculations, and it must be paid.
The model training and policy will be available from the state in Spanish and several other languages including Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole. If the employees in your workplace speak these languages, then the training should be provided in that language.
New York City Law
New York City also will require employers with 15 or more employees to provide annual training starting April 1, 2019. The City has not yet issued guidance or models regarding this training.
Records and Posters
- The best practice is to maintain records of the training. In New York City, records also are required to be maintained for three years from the date of the training.
- Effective September 6, 2018, NYC employers were required to display specific posters and provide a notice to new hires:
- New York City issued a poster which must be conspicuously displayed in a common area as of September 6, 2018. Download the poster here: https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Notice-8.5x11.pdf
- In addition, new hires will also need to receive a fact sheet by the same date, which can be downloaded here: https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Factsheet.pdf
New York City (NYC) ”Cooperative Dialogue” Law
New York City has further amended the NYC Human Rights Law to require a “Cooperative Dialogue” when an employee requests an accommodation related to his or her religious beliefs, disability, pregnancy, childbirth or related condition, or because the employee was a victim of domestic violence, sexual violence or stalking. This is something many NYC employers have already been doing in practice, under federal law, state law, or their own best practices and policies.
The law now requires certain procedures to be followed in these situations:
- Employers must “engage in good faith in written or oral dialogue” when an accommodation is requested. If an employer cannot provide the specific accommodation request, then it must discuss the challenges and hardships posed by the request and suggest potential alternatives that are responsive. This good faith dialogue (written or verbal) must continue until resolution, either granted or denied. Upon completion, the employer must memorialize the determination, whether the accommodation was provided or denied, and provide a copy of such written report to the person requesting the accommodation.
- NYC has also made it a violation not to engage in this cooperative dialogue in good faith or to fail to provide the written determination of the cooperative dialogue. This law goes into effect on October 15, 2018.
Home Health Care Industry Employers: 13 Hour Rule
Home Health Care Industry employers in New York have long followed the NY DOL’s interpretation of the 13-hour rule, which essentially stated that home care workers only had to be paid 13 hours of a 24-hour live-in shift, as long as they received the required sleep and meal periods. After a few court decisions that clouded the rule, the NY DOL codified the rule through its emergency rule making power, which puts the rule into effect for a period of 90 days. The NY DOL then also renewed the emergency rule.
The New York Supreme Court for NY County has ruled that the emergency rulemaking amendment to the “13-hour rule” was “null, void and invalid.” Importantly, the court was not ruling on the validity of the rule but only that the method used (the “emergency regulation”) was not the appropriate vehicle for codifying this rule. The NY DOL has been taking steps to amend its Wage Order including holding a mandatory hearing last July which with hope will lead to a codification of this longstanding 13-hour rule interpretation.