New York Guidance on Sexual Harassment Prevention Offers Insights for Minnesota Employers

The State of New York recently enacted a law requiring employers to take specific actions to prevent sexual harassment in the workplace. The New York State Division of Human Rights has now issued guidance for employers on implementing their obligations under the law.

This guidance offers Minnesota employers a glimpse of what legislation might look like if our legislature passes a similar law, and provides useful tips on how, regardless of any such law, Minnesota employers might consider addressing sexual harassment prevention in their work sites.

What the Guidance Includes

The New York statute, passed in April 2018, requires employers operating within the state to adopt and distribute a written sexual-harassment prevention policy. In addition employers are required to implement annual “interactive sexual harassment training” by October 9, 2018.

On August 23, 2018, the New York Division of Human Rights issued draft materials offering guidance on the new law’s requirements. These documents are open for public comment until September 12th, and therefore may change before they are finalized, but even in draft form should provide useful advice to assist employers in implementing policies that comply with their new legal obligations.

Specifically, the Division issued the following documents for public review:

The materials provide guidance regarding what constitutes an “interactive” training. Specifically, to be interactive, the training must:

  • Ask questions of the employees in the program;
  • Include a Q&A portion;
  • Use a live trainer to conduct the training, or at the minimum make one available to answer questions; and
  • Require employee feedback following the training.

As long as a live trainer is available to answer questions, an online training may be sufficient.

Who Must Receive Training and When

The materials also clarify the department’s position regarding who must receive the training and when it must be given:

  • Current employees must receive compliant training on or before January 1, 2019 (it is unclear under the guidance whether this means that if employees had training prior to the release of these materials if it would still be sufficient, as the requirement is for annual training).
  • New hires must receive the training within 30 days of hire.
  • Even if employees work in New York for just one day they still must receive the training annually.

Employees must be provided with a copy of the sexual harassment prevention policy. An electronic copy is fine as long as hard copies are also available during work hours.

Bottom Line

New York employers now know what their state considers necessary in order to meet their legal obligations under the new law.  Although these are things that have routinely been recommended as preventive measures for a long time, the failure to implement them will now likely be viewed as independent legal violations in the State of New York.

Employers in Minnesota and around the country are now watching to see if similar laws begin to crop up elsewhere.  So are we.