Employers must adopt policies on preventing sexual harassment

Uncertainties remain as New York employers are preparing to comply with the state’s reform of workplace sexual harassment laws adopted earlier this year requiring employers to enact policies and provide employee training to combat workplace harassment and discrimination.

Sexual assault and harassment have been in the national spotlight in recent years as powerful political figures, Hollywood actors and producers and prominent businessmen have been accused of mistreating coworkers and employees. State lawmakers approved an extensive overhaul of workplace harassment laws earlier this year aimed at reducing sexual harassment and discrimination.

Each employer in the state, regardless of size, will soon be required to adopt the state’s model policy or create a policy that meets the state’s minimum standards. The state Department of Labor (DOL) and Division of Human Rights (DHR) collaborated on a model policy, which was released in August and is available online.

Paychex director of compliance Mike Trabold said there are a significant number of small business owners in the state who aren’t yet aware of the impending state requirements aimed at combating sexual harassment in the workplace. Trabold said as a large employer in Rochester and throughout the state, Paychex is working to ensure all the requirements are met.

“But probably even more important is talking with all our clients here in New York State to make sure they have an awareness of what the requirements are and that we’re supporting them with tools and services,” he said.

According to the DOL, sexual harassment includes unwelcome verbal or physical advances, sexually explicit or derogatory statements, and sexually discriminatory remarks that are offensive or interfere with an individual’s job performance. Any type of bias on the basis of sex, sex stereotyping, discrimination due to gender identity or transgender status and discrimination due to pregnancy are all considered sexual harassment.

Requests for sex, especially by a person in authority offering to trade job benefits for sexual favors, also qualifies as sexual harassment.

According to Trabold, Paychex has previously practiced much of what is included in the state requirements, and the company plans to provide education and awareness to other New York employers. Other states and localities have put forth similar measures, Trabold said, but New York’s requirements are unique.

Minimum standards of an employer policy should include prohibiting sexual harassment, providing examples of prohibited conduct and specifying information about applicable laws and remedies available to victims. Policies must also state that sexual harassment is a form of employee misconduct and that individuals engaging in the behavior or supervisory personnel who allow harassment will be sanctioned.

Ed Steve, labor and employment counsel at Harter Secrest Emery LLP, said smaller employers may opt to adopt the model policy, but large employers would likely want to create policies designed to meet their needs. He said any company creating its own policy should confer with their legal counsel to ensure the policy complies with state standards.

Sexual harassment in the workplace is a serious matter, Steve said, and policies should be readable and understandable for the average employee.

Amy Habib Rittling, who chairs the employment practice group at Lippes Mathias Wexler Friedman LLP, said adopting a compliant policy would be “a major change for everyone.”

Employers who have policies in place should review those policies to ensure they comply with state standards, she said, adding companies with “good, strong policies in place” would still likely need to make alterations.

As part of the policy, employers are required to provide a complaint form for employees and create a method to confidentially investigate complaints that affords due process to the involved parties. Employees must also be supplied information about different pathways victims can take to seek justice, including information about applicable courts and state and federal agencies.

Under state law, the policies must also make clear that individuals who file complaints will not be retaliated against.

One of the most significant changes — that will impact all employees and employers — is a requirement that each employee in the state undergo sexual harassment prevention training. The state says the training must spell out the company’s policy and be interactive.

“It certainly indicates that what some employers have done in the past for training, which is sit your employee in front of a computer monitor and press play on a program, is not going to be sufficient,” Habib Rittling said.

Final model training materials are expected to be released by the state before Oct. 9, and employers must use the model training — which was developed by the DOL and DHR — or use training that meets or exceeds minimum standards.

The training requirement is “significant,” Habib Rittling said, noting the draft model training released by the state would take several hours to meaningfully go through.

Under the current proposed timeline, companies would be required to train all employees before Jan. 1, but many employers appear to be pushing the state to be more lenient on that timeline, according to Steve, who said it would be important for employers to pay close attention to the compliance timelines.

“Employers are asking that the state move that date back to at least July 1 or Dec. 31, 2019,” Steve said, adding employers have a lot going on at the end of the year and the final training documents won’t be released until October.

Trabold called the timeline “very aggressive,” and said, if forced to project a potential change from the draft guidelines, it would be a longer implementation period.

“It’s feasible that would happen, but we’re telling our clients to prepare for the dates that are in there now,” Trabold said.

Under the current guidelines, new employees would have to receive the sexual harassment training within 30 days of hire, Steve said. Habib Rittling said seasonal employment could also create issues for employers, pointing to the large number of temporary employees hired for the holiday season each year.

Pushing back the timeline for workers to be trained would allow employers to comply with the requirements in a more realistic way, Habib Rittling said, adding “everyone wants to see this done in a way that meets its intended purpose.”

“Hopefully there will be some additional time allotted for employers to become compliant so they’re all not trying to do that very quickly toward the end of the calendar year,” Habib Rittling said. “So that it really is done the right way and in a way in which the state is intending to achieve.”

Following the release of the final model policy and training in October, Steve said employers should consult with their attorneys and review existing policies and trainings to comply with state regulations. He said employers should also ensure the policy is distributed, training provided and that everything is documented.

Steve said there’s nothing in the state guidelines at the moment that point to repercussions for not following the state regulations, but he pointed to the policy and training as a company’s defense against sexual harassment claims.

Trabold said some small business owners have received communication from insurance providers requesting evidence the sexual harassment training was completed to ensure continued insurance coverage. Most employers have some type of employment practices liability insurance that “insulates them from employment-related claims,” he said, and it appears insurance carriers in the state would be asking for evidence of the training.

“That’s an interesting dynamic that only magnifies how important it’s going to be that employers are on top of this,” Trabold said.

Steve said one often-overlooked provision in the state law applies to any companies seeking to bid on competitive state bids. Future bids would include a requirement that the employer affirm it has a policy and a training program, so even out-of-state companies bidding in New York may be subject to the state sexual harassment laws.

Non-employees in the workplace are protected under the state law as well, Steve said, putting the onus on companies to protect visitors and anyone who happens to be in the workplace. Habib Rittling called the covering of independent contractors, vendors, consultants or anyone providing services in the workplace “a sizable expansion” of the individuals protected by state law.

The state law also addresses so-called gag orders, saying non-disclosure agreements must be agreed to by the complainant, with individuals given 21 days to consider a non-disclosure agreement and another seven days to revoke the agreement.

Visit https://www.ny.gov/programs/combating-sexual-harassment-workplace for detailed information about the impending state requirements.

Matthew Reitz is a Rochester-area freelance writer.