Category: Harassment

August 27, 2018

First Look: NYS Model Sexual Harassment Policy & Training

In April 2018, New York State law was amended to require all employers to maintain a written sexual harassment policy and provide annual sexual harassment training for all employees. The law required the New York State Department of Labor to formulate model policies and training programs. On August 27, 2018, initial versions of these documents appeared online.

The State’s website on “Combating Sexual Harassment in the Workplace” notes that “the sexual harassment policy and complaint form are draft documents”. It encourages interested parties to submit comments by September 12, 2018.

[Click here to read an earlier summary of the new sexual harassment laws themselves.]

Model Sexual Harassment Policy

Many New York employers already have written anti-harassment policies. These policies may prohibit many forms of workplace harassment, of which sexual harassment is just one. However, the New York law only requires a sexual harassment policy. And the State’s draft model policy only addresses sexual harassment. Thus, it remains unclear whether employers can satisfy the law through an omnibus anti-harassment policy or must have a standalone sexual harassment policy. For now, compliance caution favors the latter approach.

The State’s model policy is seven full pages long, single-spaced. It includes these primary sections:

Introduction
What Is “Sexual Harassment”?
What is “Retaliation”?
Supervisory Responsibilities
Complaint And Investigation Of Sexual Harassment
Legal Protections And External Remedies

Most of these sections have sub-headings. These include “Examples of sexual harassment,” “Where can sexual harassment occur?” and “Contact the Local Police Department.”

That last section is one to note. It reads, in full: “If the harassment involves physical touching, coerced physical confinement or coerced sex acts, the conduct may constitute a crime. Contact the local police department.” This wording does not clarify who should contact the police. Does it pertain to management receiving complaints or just employees subjected to such conduct?

The model policy goes into other areas not normally included in traditional anti-harassment policies. For example, it gets fairly detailed in describing the steps management will take in investigating complaints of sexual harassment. The steps are generally absolute and don’t allow for much investigatory judgment. On the other hand, it is not comprehensive in explaining all aspects of an effective workplace investigation.

The NYS model sexual harassment policy is available here.

“Zero Tolerance” Policy

The New York draft model sexual harassment policy states at the outset that it is a “zero tolerance” policy “for any form of sexual harassment.” It later references a “zero tolerance” policy for retaliation against anyone “who, in good faith complains or provides information about suspected sexual harassment.” However, the policy does not carefully explain what “zero tolerance” means.

As I’ve discussed before, “zero tolerance” policies are a good idea if properly understood only to mean that the employer does not tolerate harassment. However, many misperceive the term to indicate that any form of harassment will lead to termination of employment. That philosophy often proves untenable.

On the whole, the model policy clearly intends that termination is not the only possible outcome for prohibited sexual harassment or retaliation. But it can also be read as strongly favoring severe penalties for even comparatively minor violations. “Sexual harassment” under the law and this policy is not always physical or even “sexual” per se. As the model policy acknowledges, it includes unwelcome conduct “which is directed at an individual because of that individual’s sex.” This can include comments or jokes unrelated to sexual intentions or motivations. Although still wrong, such actions will not always warrant job loss.

Not Limited to the Workplace

The draft model sexual harassment policy properly advises that harassment can occur even outside the workplace. It contains the following provision to this point:

“Unlawful sexual harassment is not limited to the physical workplace itself. It can occur while employees are traveling for business or at employer-sponsored events or parties. Calls, texts, emails, and social media usage by employees can constitute unlawful workplace harassment, even if they occur away from the workplace premises or not during work hours.”

Sexual Harassment Complaint Form

As the new State law requires, the model policy references a written complaint form. The State has issued a draft complaint form as well. The policy encourages, but does not require, the complaining employee to use this form.

The form itself asks basic identification information about the complaining employee, their immediate supervisor, and the alleged harasser. It then asks questions about the nature of the sexual harassment and the identity of witnesses.

The remaining questions are more surprising. One question asks whether the employee has “previously complained or provided information (verbal or written) about sexual harassment” at the employer. This questions (and a follow-up) may be seeking to determine whether the employee has raised concerns about the same harasser in the past (and to whom), but as phrased, is broader and arguably appears to ask whether the person is a frequent complainant.

The form then advises the employee that they may be able to file claims with government agencies or in the courts. Moreover, it specifically asks the employee whether they have filed a claim with an agency or in court and whether they have hired an attorney. I’m not sure that most employers would feel comfortable asking these questions so directly on their own or whether employees would expect to have to answer them.

The third page of the model complaint form provides “Instructions for Employers.” These “instructions” are brief and essentially remind the employer to investigate.

You can access the draft model complaint form here.

Minimum Standards for Sexual Harassment Prevention Policies

The State has also provided a one-page document that acknowledges that employers don’t have to adopt the model policy.

Instead, an employer could implement an alternative policy that exceeds these minimum standards:

prohibits sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
provides examples of prohibited conduct that would constitute unlawful sexual harassment;
includes information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
includes a complaint form;
includes a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
informs employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
clearly states that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
clearly states that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

Many employers will likely adopt the State’s model policy as a path of least resistance. However, some employers will prefer to craft their own language to better fit their organizations (and avoid some of the questionable contents of the model policy, at least as contained in the draft version).

This minimum standards guidance document also asserts that “Employers should provide employees with the policy in the language that is spoken by their employees.” The scope of this requirement is unclear.

Model Sexual Harassment Prevention Training

New York State has issued a 24-page Model Sexual Harassment Prevention Training manual (labeled the “July 2018 Edition”). It is not clear whether the State is seeking comments on this document or may revise it before October 9th.

The training documentation reiterates the law’s requirement that the training must be “interactive.” The State clarifies that this requires “some level of participation by those being trained.”

To this end, the model training manual advises:

The training should include as many of the following elements as possible:

Be web-based, with questions asked of employees as part of the program
Accommodate questions asked by employees
Include a live trainer made available during the session to answer questions
Require feedback from employees about the training and the materials

There is some ambiguity in whether the State prefers sexual harassment training to be both “web-based” and facilitated by a live trainer.

The training manual references model materials that include a script, PowerPoint, video, and FAQs.

Click here for the model training package. And here for the draft PowerPoint presentation.

Training FAQs

The law requires annual interactive sexual harassment training. The training materials focus solely on sexual harassment. Thus, it’s still unclear whether or to what extent training must separate out sexual harassment from other forms of prohibited workplace harassment. However, the State’s Combating Sexual Harassment website does answer some questions employers have been asking.

Some of the State’s questions followed by my paraphrasing of its answers:

By what date do all of my employees need to be trained? January 1, 2019
How often must employees receive sexual harassment training? After 1/1/19 may be based on calendar year, employee anniversary “or any other date the employer chooses”!
What about new employees or those who start after January 1? Must complete sexual harassment training within 30 days of start date.
What happens if some employees fail to take the training despite an employer’s best efforts to make it available, and to require everyone to take it? Every employee must receive annual training. If you can’t get them to participate, you may have to fire them to stay compliant.

What Should New York Employers Do Now?

If you have any employees in New York, then:

You must have a compliant written policy in place by October 9, 2018; and
You must provide compliant sexual harassment training to all employees by January 1, 2019.

But, I wouldn’t rush to put the State’s model sexual harassment policy into place yet. Expect that employers, unions, employees, business groups, attorneys, and various other parties will submit numerous comments and critiques by September 12, 2018. Even if the State would like to simply finalize its current draft, that outcome is unlikely. Some revisions will occur.

Depending on what the final model policy looks like, employers may be better off to implement an alternative, though legally sufficient, policy. Employers should, however, confer with experienced employment counsel before taking that approach.

I also would not rush to provide sexual harassment training immediately. There may also be further guidance or at least model materials available before January 1st (and hopefully before October 9th). Regardless, employers have tough decisions to make about the best approach to training, keeping in mind that it will be an annual responsibility (and an ongoing one for new hires).

Stay tuned for more analysis of any new guidance on New York’s sexual harassment policy and training policies. To receive updates through our email newsletter, sign up here.

June 21, 2018

EEOC Task Force Addresses Sexual Harassment

In the midst of the #MeToo and #TimesUp movements, the U.S. Equal Employment Opportunity Commission (EEOC) announced in a June 14, 2018 press release that it had recently filed several harassment lawsuits against employers throughout the county. The EEOC stated these lawsuits “should reinforce to employers that harassment – on all bases – is a violation of federal law”. The seven lawsuits referenced in the press release were all filed within two days of a meeting of an EEOC task force on harassment in the workplace. The meeting, entitled “Transforming #MeToo into Harassment-Free Workplaces: A Reconvening of the EEOC’s Select Task Force on the Study of Harassment in the Workplace,” took place on June 11, 2018.

Sexual Harassment Litigation

The EEOC lawsuits include allegations against a marine dealership for racial and sexual harassment from supervisors toward the welders they supervised. The EEOC also sued a trucking company for allowing an independent contractor trucker to sexually harass and threaten a female employee while they drove together. The majority of the lawsuits involve offensive sexual comments, unwelcome touching, and derogatory racial terms. The overall trends of these lawsuits include actions of supervisors toward employees and how the sexual harassment tends to occur in isolated areas of the workplace. The cases emphasize the failure of employers to prevent or address this inappropriate conduct and the allowance of retaliation against those who report this conduct.

The EEOC regularly sues employers for violations of federal employment discrimination laws. However, the agency’s group announcement of the cases in connection with the meeting of the harassment task force is notable. This action should remind employers that the federal government can prosecute businesses who allow harassment to occur in their workplaces. Employees may separately sue their employers under the same and other laws.

EEOC Task Force on Study of Harassment in the Workplace

EEOC Commissioners Chai R. Feldblum and Victoria A. Lipnic chair this task force. It also consists of academics, attorneys, employer and employee advocacy groups, and unions. The task force reconvened on June 11, 2018, with a focus on sexual harassment.

The EEOC task force encourages employers to avoid becoming a defendant in an EEOC (or employee) lawsuit. In June 2016, the EEOC task force reported on the causes, effects, and methods of preventing harassment in the workplace. The report detailed seven main findings:

Workplace harassment continues to be a problem. In 2015, about one-third of EEOC charges involved a form of workplace harassment.
Workplace harassment is consistently unreported. Victims of harassment often don’t report because of fear of retaliation or inaction in response to their complaints.
There is a compelling business case for addressing harassment and preventing further harassment. This includes direct costs, such as legal fees, along with its damaging effect on all workers, which results in lower productivity, higher turnover, and reputational harm.
Leadership and accountability are necessary. Workplace culture has a significant effect on the existence of harassment. Leadership must communicate its commitment toward addressing and preventing harassment.
Workplace training needs to change. Training is most effective when it is tailored to a specific workplace and includes relevant examples of unacceptable behavior.
New approaches to training must be explored. Studies on bystander intervention training and workplace civility training have shown promising results.
Harassment in the workplace won’t stop on its own- it’s on us. Harassment will only stop once everyone at the workplace has a shared sense of responsibility for stopping and preventing harassment.

EEOC Sexual Harassment Statistics

The June 11 meeting highlights the EEOC’s focus on addressing sexual harassment. Although it is just one form of unlawful workplace harassment, sexual harassment has served as an impetus for awareness over the past year. In 2017, the EEOC received 6,696 charges concerning sexual harassment. From these, the EEOC obtained $46.3 million on behalf of employees sexually harassed at work. To avoid joining these statistics, employers must implement effective anti-harassment policies and complaint procedures after analyzing the risk factors of their specific workplace. Then they must take all allegations of harassment seriously. This includes conducting a prompt investigation, taking appropriate remedial action, and preventing retaliation.

April 17, 2018

State Budget Expands New York Sexual Harassment Laws

On April 12, 2018, New York Governor Andrew Cuomo signed State Budget legislation that includes several provisions aimed at workplace sexual harassment. Some of the items included will require additional clarification through agency guidance and regulations. But here’s an initial overview of how New York sexual harassment laws will change.

Some new aspects of New York sexual harassment law took effect immediately. Others will become effective later. Here they are in the order that they take effect.

Protection of Non-Employees

Before April 12, 2018, the New York Human Rights Law only protected employees from sexual harassment. Effective immediately, it is also unlawful for employers to permit sexual harassment of non-employees in their workplaces.

In addition to employees, the law now protects:

Contractors
Subcontractors
Vendors
Consultants
Other persons providing services under a contract in the workplace
Employees of the above

An employer may be liable for sexual harassment against these individuals if it knew or should have known that the individual was subjected to sexual harassment in its workplace and failed to take “immediate and appropriate corrective action.”

The law does add that: “In reviewing such cases involving non-employees, the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the harasser shall be considered.”

Public Officers

Effectively immediately, employees and officers of public entities (including the State, its agencies, local governments, and school districts) who are found personally liable for intentional wrongdoing related to sexual harassment must now reimburse their employer if it pays the judgment to a victim.

If the employee does not repay their public employer within 90 days, the employer may withhold compensation from the employee’s pay. If the person is no longer employed by the public entity, the employer may pursue collection through the courts.

Mandatory Arbitration Clauses

Beginning July 11, 2018, New York law will prohibit “any clause or provision in any contract which requires as a condition of the enforcement of the contract or obtaining remedies under the contract that the parties submit to mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.”

This law defines a “mandatory arbitration clause” as “a term or provision contained in a written contract which requires the parties to such contract to submit any matter thereafter arising under such contract to arbitration prior to the commencement of any legal action to enforce the provisions of such contract and which also further provides language to the effect that the facts found or determination made by the arbitrator or panel of arbitrators in its application to a party alleging an unlawful discriminatory practice based on sexual harassment shall be final and not subject to independent court review.”

The law contains a telling exception. This prohibition applies “except where inconsistent with federal law”. That language is probably unnecessary, as the State law could not trump federal law anyway. But, it shows the Legislature’s recognition that federal law, including the Federal Arbitration Act, broadly favors arbitration. Thus, it remains to be seen whether this state restriction will be enforceable.

The law also allows that mandatory arbitration clauses contained in collective bargaining agreements are not prohibited.

Nondisclosure Agreements

Also as of July 11, 2018, employers may no longer include a provision in any settlement document resolving any claim involving sexual harassment that “would prevent the disclosure of the underlying facts and circumstances to the claim.”

The law provides an exception where “the condition of confidentiality is the plaintiff’s preference.” In that case, the plaintiff must have 21 days to consider the nondisclosure terms. Then, after 21 days, the parties can agree to the provision in a written agreement signed by all parties. But the plaintiff still must have at least 7 days to revoke the agreement after signing it.

New York Sexual Harassment Prevention

For the first time, New York will require all employers to maintain sexual harassment prevention policies and provide training for employees. These requirements take effect October 9, 2018.

Model Policy

A new provision of the New York State Labor Law requires the Department of Labor (DOL) to consult with the Division of Human Rights and publish a “model sexual harassment prevention guidance document and sexual harassment prevention policy.”

The model New York sexual harassment prevention policy must:

Prohibit sexual harassment and provide examples of prohibited conduct;
Include information about federal, state, and local sexual harassment laws;
Include a standard complaint form;
Identify a procedure for “timely and confidential investigation of complaints and ensure due process for all parties”;
Inform employees of their rights of redress and all available administrative and judicial forums for adjudicating sexual harassment complaints;
State that sexual harassment is a form of employee misconduct with sanctions for both individuals engaging in it and supervisors and managers who allow it to continue; and
Prohibit retaliation against individuals who complain of sexual harassment or testify or assist in any proceeding.

Once the model policy is available, all New York employers must adopt it or one that “equals or exceeds the minimum standards provided by such model”. Employers must provide their policy to all employees in writing.

Model Training Program

The DOL must also consult with the Division of Human Rights and produce a model sexual harassment training program.

The model New York sexual harassment prevention training program must be “interactive” and include:

An explanation of sexual harassment;
Examples of conduct that would constitute unlawful sexual harassment;
Information about federal and state sexual harassment laws and remedies;
Information about employees’ rights of redress and available forums; and
Additional responsibilities regarding supervisors.

Every New York employer will have to provide sexual harassment prevention training to all employees annually. Employers may use either the model training program or one that “equals or exceeds the minimum standards provided by such model training.”

State Contractors

Starting January 1, 2019, any entity seeking a contract with the State of New York through competitive bidding must certify that they have instituted a written policy on sexual harassment prevention. They must further certify that they provide annual sexual harassment training to all employees.

Stay Tuned for More on These New York Sexual Harassment Laws

Since most of these New York sexual harassment law changes don’t take effect immediately, employers have some time to prepare. For many, the biggest project will be complying with the new policy and training requirements. Even employers who already provide anti-harassment training to their employees will have to review the model policies and training programs to make sure they meet the minimum standards.

One thing you can do now is sign up for my email newsletter to make sure you get my updates on these important topics. This will include an announcement about a free webinar once the State issues the model New York sexual harassment materials.