Sexual Harassement Policy & Training Now Required for Full and Part-Timers
By William Y. Crowell, III
Legislation enacted with the 2018-19 New York State budget requires all employers to adopt a sexual harassment policy in addition to a sexual harassment training program. This mandate applies without regard to the number of employees. It does not matter whether an employer has one employee or 100 employees. It is not limited to full-time employees. An employer is responsible for all workers including part-time, seasonal and temporary workers. The carwash industry often uses part-time and temporary workers, so please be aware that the policy and training requirements apply to these workers.
Labor Law 201-G contains the requirement that every employer must adopt a sexual harassment policy. In early October, the Department of Labor (DOL) issued a final guidance on a model sexual harassment policy, and minimum standards for sexual harassment prevention and policies. An employer may adopt the state’s model policy. If an employer adopts their own policy, it must meet or exceed the minimum standards provided for in the state’s policy
Employers were required to have established and distributed the anti- sexual harassment policy by October 9, 2018. The New York State Department of Labor also has a model complaint form for use by employees. This form should be made available by employers for employees to use to file a complaint. The employer must make it clear where the form may be found by an employee. The anti-sexual harassment policy is required to be distributed to employees prior to commencing work.
The employer may make the anti-sexual harassment policy available in writing or electronically if it is available on a work computer, the employee must be able to print it for their own records. The DOL encourages the posting of the policy and also making it available to parties providing services in the workplace. The guidance issued by the DOL encourages employees to keep a signed acknowledgement by the employees of receipt of the policy.
The DOL provides a poster that notifies employees of the existence of the sexual harassment protection. Use of the poster is not mandated but is recommended by the DOL.
If your carwash has not already complied with the requirements for a sexual harassment policy, this should be your immediate focus. The next deadline to be met is October 9, 2019, for employers to provide sexual harassment prevention training.
Every employer in New York State must provide employees with annual sexual harassment prevention training which is “interactive.” The New York State Department of Labor provides model training materials for employers. The interactive requirement is the most difficult from an employer compliance perspective. The guidance provided by the New York State Department of Labor encourages the use of a live trainer as a best practice. Employers are not able to show a video alone or provide employees with a document to meet the training requirement. Web-based training is allowed provided that participants are asked questions upon completion and provide correct answers. Employees must also be able to submit a question online and receive an answer in a timely manner. Both web-based and in-person training is required to provide a survey to employees which would be returned after completion of the training.
Employers are required to train newly-hired employees as soon as possible. No minimum time frame is prescribed for the training.
If an employee does not attend scheduled training that does not absolve the employer from the requirement to train the employee. Employers are authorized to pursue administrative remedies to ensure employee compliance.
Trainers are not certified by the Department of Labor.
The employer is responsible for reviewing the third-party training to ensure it exceeds minimum standards.
Carwash operators located in the New York City market have obligations under Local Law 96 of 2018. Employers in New York City were required to display a workplace poster in both Spanish and English by September 6, 2018, published by the New York City Commission on Human Rights. There is also a fact sheet provided by the Commission on Human Rights which intended to be distributed to new employees.
The City law also includes a training requirement which takes effect on April 1, 2019. Employers with 15 or more employees are required to conduct an annual anti-sexual harassment training for all employees. The City Commission on Human Rights is developing an online training program for use by employers. Employers are required to provide a record of trainings, including a signed employee acknowledgment. Whether the New York City version of on-line training will satisfy New York State requirements and vice versa remains to be seen.
The New York State Department of Labor website contains frequently asked questions and model sexual harassment policy and training (https://www.ny.gov/programs/combating-sexual-harassment-workplace). The information contained on the website provides the most up-to-date information for employers on implementation of the sexual harassment policy and training. Carwash operators should definitely consult the website and seek professional assistance when establishing a program to conform with the statutory and guidance materials. Employers with harassment policies and training in place are benefitted by their affirmative policies in the event of a discrimination claim.
William Y. Crowell, III, is a partner with Cozen O’Connor. You can reach him at 202/883-4944 or firstname.lastname@example.org