At the 11th hour, New York State published final guidance for sexual harassment policies which will become mandatory for employers beginning on October 9, 2018. Employers are warned, however, that the guidance published by the State may lead them astray.

While instructive, employers and their advisors, including human resources professionals, should keep in mind that the guidance posted on the State website is not law. In fact, it’s not even a State regulation.  Instead, employers’ foremost obligation is to comply with the statute’s requirements for their written policies, not the State’s guidance. Per the 2019 Budget Bill, new NY Labor Law § 201-g(b) requires New York employers to either adopt the model sexual harassment prevention policy published by the State or to establish a policy that “equals or exceeds the minimum standards provided by such model sexual harassment prevention policy.”

The State’s administrative agencies weren’t charged with establishing minimum standards for sexual harassment policies; rather, they were charged with developing a model policy. The model policy; however, appears to extend beyond the requirements set forth by § 201-g(a). This is troubling news for employers who must implement policies that meet or exceed the model policy’s minimum standards.

Given this uncertainty, employers should tread cautiously when considering whether to modify the State’s model policy. A non-compliant policy will almost certainly be harmful to an employer’s defense of a later sexual harassment claim, whether the claim itself is legitimate or not.

If you have questions about compliance with these new laws, contact The Coppola Firm. We can help.

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