Employers must ensure compliance with harassment prevention training

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The failure of former Gov. Andrew Cuomo to acknowledge he took part in sexual harassment prevention training — regulations that he signed into law — underscores the oversight that is necessary by every business to ensure employee compliance.

Annual sexual harassment prevention training is required by every business in New York, public and private, under a bill signed by Cuomo in October 2018.

Following the interactive training, employees must acknowledge their participation with a signature.

But Cuomo apparently took part in the training just once and he never signed the certificate of acknowledgment, according to New York State Attorney General Letitia James’ report on her investigation into sexual harassment allegations, allegations that led to the governor’s resignation on Tuesday.

The report says Cuomo did testify to reviewing the required training materials in 2019 but Stephanie Benton, office director for Cuomo, signed the compliance certificate.

The report also revealed Cuomo did not sign the required documents in 2018 or 2020, said Amanda Smith, senior associate at Tully Rinckey PLLC whose practice focus on employment law.

“You’d think since they were the ones pushing the law, they’d have signed off on it starting in 2018,” Smith said. “They’re not even compliant with the state labor law so what kind of training are they getting?”

Failure of an employee to acknowledge attendance in the training session can lead to liability issues for an employer, should claims of sexual harassment arise with that employee.

“It takes away a lot of the affirmative defenses,” Smith said. “The Department of Labor can take action so a you need to be sure employees are compliant. You want to avoid any unnecessary payouts.”

Fines can be significant, but there also can be criminal action.

Fines start at $100 per employee for the first violation and increase based on the number specific offenses, such as failure to provide training, failure to create a sexual harassment prevention policy and not supplying a complaint form.

For violations of state Labor Law 201-g, under Section 213, an employer can be found guilty of a misdemeanor, leading to fines and/or imprisonment.

An employer also can be liable for a supervisor’s actions (or inactions) and courts can order punitive damages due to the failure to train, comply with a law and willful negligence, Smith said.

The law applies to every business, regardless of the number of employees. If if there is just one other employee besides the owner, that employee must be given materials to review and know what to do if a harassment claim must be filed, Smith said.

The state Department of Labor and the Department of Human Rights provide materials and methods that can be used by employers for their sexual harassment training. The materials include videos and PDFs “and they are very specific that the training must be interactive,” Smith said.

Upon original enactment of the legislation, the legislature said it will review in 2022 the impact of the law “and then modify as needed,” Smith said.

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