States Trending Towards Mandatory Sexual Harassment Policies and Training

NY RECENTLY REQUIRED ANNUAL SEXUAL HARASSMENT TRAINING AND SPECIFIC SEXUAL HARASSMENT POLICY LANGUAGE IN EMPLOYEE HANDBOOKS

As many business owners are well aware, sexual harassment has been a hot topic over the last couple of years not only for high profile public figures, but also among employees across the United States.  Many employees are taking matters into their own hands by filing complaints and lawsuits against their co-workers and employers for sexual harassment.  The newest trend to arise from this arena, following on the coattails of the #MeToo movement, are states taking independent action to require businesses within their jurisdiction to provide training and implement policy language regarding sexual harassment.

The most recent state to follow this trend is New York. As part of its 2018-2019 State Budget, New York law requires all employers  in the state (regardless of size) to adopt sexual harassment policies and training programs that meet or exceed the requirements in model documents issued by the New York Department of Labor (NY DOL). The draft model documents include: a definition of “sexual harassment,” detailed instructions for employees about filing claims in federal and state court, and a pronouncement that “managers and supervisors are required to report any complaint that they receive.” 

The law further requires that interactive sexual harassment training be held annually, with new employees receiving sexual harassment prevention training within 30 calendar days of their start date.  NY does not require training or policies be provided to contractors, subcontractors, vendors or consultants working with a company – it only applies to employees of the company. 

Furthermore, NY clarifies that only employees who work or will work in NY State need to be trained. If an individual works a portion of their time in NY State, even if they are based in another state, they must be trained.

NY IS NOT ALONE AS OTHER STATES TREND TOWARD SIMILAR SEXUAL HARASSMENT MEASURES

NY is not the outlier when it comes to states requiring sexual harassment training. Connecticut requires such training for supervisors, while Maine requires training for all employees. Since 2005, California has required sexual harassment training for supervisors every two years. After NY passed its law, Delaware followed suit, requiring training for all employees every two years. 

Additionally, there are a number of states that “encourage” employers within the state to provide employees with sexual harassment training. These states include: Colorado, Florida, Massachusetts, Michigan, Oklahoma, Rhode Island, Tennessee, Utah, and Vermont. We can expect this list to grow as more and more states are taking these proactive measures to educate their employees sexual harassment prevention.   

Not only does this trend stem from the #MeToo movement but it is likely a shift for companies to become more transparent, a result of more women in the workplace.  While implementing such policies and training may initially weigh on a company’s bottom line, there are benefits that could save a company time and money in the long run. For example, NY does not require employers to maintain documentation verifying compliance with its new sexual harassment laws, but it does encourage employers to keep a signed acknowledgment and to keep a copy of training records as these documents would be helpful in addressing any future complaints or lawsuits.  Possessing this documentation may be beneficial for employers and HR professionals when an employee makes a sexual harassment complaint or when an employee brings a lawsuit because it shows employers attempting to educate and essentially mitigate sexual harassment in their workplaces.  This type of effort and documentation could be looked upon favorably by a judge and/or jury and result in less costs or damages awarded against a company.

State requirements to implement sexual harassment policies are a good reminder for all companies to not only update their harassment policies, but their entire handbook to stay compliant with changing laws.  Annual policy and handbook updates ensures employees know what the expectations and ramifications may be of violating the policies, and employers are better aware of the company policies and can make sure to enforce them accordingly.  Following a company policy when it comes to discipline or termination is always best practice and usually results in fewer discrimination or retaliation claims against the company.

If you have questions regarding sexual harassment training laws in your state or would like to discuss specific questions you may have about your handbook or company policies, please contact your Thompson Coe attorney at (651) 389-5000 or at myHRgenius@thompsoncoe.com.  You can also find additional information and tips for your company and HR professionals at https://thehrgenius.com/