Hey New Yorkers: Hold Up on That New Sex Harassment Plan Because Cuomo Just Pulled a Fast One on Us

We were all set to regale you this week with some fun and exciting information about New Jersey’s new Earned Sick Leave law set to take effect on October 29, but that will have to wait. That’s because without warning, on October 1, New York State announced significant changes to its sexual harassment program. That’s right, just 8 days before the law takes effect, NYS released a new model policy, model complaint form, and model training program, and even more expansive FAQs with different answers to some of the Qs!. And most importantly, the State has changed the date by which all employees must receive their first dose of annual sexual harassment training.

Remember the panic we all felt when we first learned that all employees working in NYS had to receive interactive sexual harassment training by December 31, 2018. Maybe because of his thrashing of Cynthia Nixon in the primary, or maybe because he’s just mean, this week the Governor said,  just kidding, you now have until October 9, 2019 to conduct the model sexual harassment training program. Oh and if you thought that was funny, remember the one about all new hires having to be trained within 30 days, well that’s been changed to as soon as possible. Good one Andrew!

The new FAQs finally answer the question of whether interactive training requires a live human being in the room (other than the trainees). The answer: it’s a best practice but not required. The FAQs do suggest that live trainers can appear by phone or video conference if not in person. Another important clarification is that if the training is web-based, it is considered interactive if the employees have the option to submit a question online and receive an answer immediately or in a timely manner. So just have an email address with your HR Department or your favorite employment lawyers (whose initials are KH) standing by ready to respond to questions from those engaged in the web-based training.

The new model sexual harassment policy went from a whopping 7 pages to 8 and added a new footnote. We all know how likely employees are to read footnotes.  Interestingly, the revised policy removed the phrase zero tolerance from the only 2 places that it appeared leading us to wonder whether that implies that the State wants there to be some level of tolerance. We think not. But it is a strange revision.

There are two significant substantive changes to the policy. The first is the addition to the definition of sexual harassment of behavior directed at an individual not only based on sex and sexual orientation, but also on self-identified or perceived sex, gender identity and the status of being transgender. The second is a new example of sexual harassment, as follows:

Sex stereotyping occurs when conduct or personality traits are considered inappropriate simply because they may not conform to other people’s ideas or perceptions about how individuals of a particular sex should act or look.

Our favorite addition though is to the list of examples of physical acts of sexual harassment which already included touching, pinching, patting, grabbing, brushing against and poking. The newly revised policy now adds kissing and hugging. We can just imagine the Attorney General walking into the room full of deputies who wrote the model policy and demanding to know who’s the dope who left out hugging and kissing? Yeah, maybe that hugging and kissing stuff is old school.

Employers in NYS need to make these changes to their new sexual harassment policies right away. Although the deadline for training has been pushed back a year, the new policies must still be implemented and distributed by October 9, 2018. Let us know if you have questions and/or need help.

Finally, we know that you’re all disappointed about missing out on the Earned Sick Leave law update, but we promise we will make it up to you next week. As a consolation, below is a link to the newly released notice that must be posted and distributed to all New Jersey employees starting October 29.

https://www.nj.gov/labor/forms_pdfs/mw565sickleaveposter.pdf