HR Connection: Sexual harassment prevention training among new requirements for NY employers

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#WeinsteinEffect. #MeToo. #TIMESUP.

For many of us, these have become part of our daily lexicon: modern identifiers for a primordial problem. They are beacons used to focus attention on the scourge of sexual harassment and misconduct that, in various forms, have been part of society since its inception. It’s said that the first step to recovery is admitting there is a problem. As a society, we’ve taken that often daunting first step.

Now what? How do we fix something that’s been broken since the dawn of time? There’s no 800 number to call, online repair manual to read, YouTube video to watch, or wise old sage to ask for advice. (My father had two sure-fire solutions — one of which was sure to fix any problem — duct tape and WD-40^®. Unfortunately, I’m hard pressed to think of how either would help here.)

Faced with the daunting, possibly unprecedented task of addressing this perpetual blight on society, what did New York’s elected representatives do? Did they turn to the best and brightest minds in the fields of human behavior, sociology, psychology, anthropology, change management, etc., for help developing an effective plan for permanent change? Did they hold in-depth discussions with victims of sexual misconduct? Did they hold public hearings to gather input from constituents? Nope. Instead, the governor and three male legislators, one of whom had recently been accused of sexual misconduct, met behind locked doors and did the equivalent of using duct tape and WD-40^®: they wrote some new laws.

With the passage of these changes to the New York State Human Rights Laws, there are some things all employers with employees in the state must know and do.

Effective immediately

It is an unlawful discriminatory practice for an employer to permit sexual harassment of contractors, subcontractors, vendors, consultants or anyone providing services to the employer as part of a contract (nonemployee). An employer may be liable for sexual harassment when the employer knew or should have known that a nonemployee was subjected to sexual harassment in the employer’s workplace, and the employer failed to take immediate and appropriate corrective action to stop the harassment.

Effective July 11, 2018

Employers will no longer be allowed to require employees to submit their sexual harassment claims to arbitration, even if the arbitration agreements were already in place before that date. Enforceability of this law may be limited as it may be preempted by the Federal Arbitration Act.

Effective July 11, 2018

Confidentiality provisions in settlement agreements for sexual harassment claims will not be allowed, unless: (i) the complainant prefers or requests confidentiality; and (ii) the complainant is given 21 days to consider the confidentiality provision; and (iii) the complainant is given 7 days to revoke their acceptance of the confidentiality provision.

Effective Oct. 9, 2018

Every employer, regardless of size or number of employees, is required to adopt and provide to all employees a written sexual harassment prevention policy that includes the following:

• A statement that sexual harassment is prohibited;
• Examples of prohibited conduct that would constitute unlawful sexual harassment;
• Information regarding federal and state laws concerning sexual harassment, a statement that additional local laws may be applicable, and the remedies available to victims of sexual harassment;
• A standard sexual harassment complaint form;
• A procedure for the timely and confidential investigation of complaints;
• Information regarding the employees’ rights of redress, and that sexual harassment complaints may be adjudicated through state or federal administrative agencies or the courts;
• A clear statement that sexual harassment is a form of employee misconduct, and that disciplinary action will be taken against individuals engaging in sexual harassment as well as managers and supervisors who knowingly allow harassing behavior to continue; and
• A clear statement that retaliation against individuals who report sexual harassment, or who testify or assist in any related proceeding is unlawful.

Effective Oct. 9, 2018

Every employer, regardless of size or number of employees, is required to conduct sexual harassment prevention training annually for all employees. The training program must be interactive and contain at least the following elements:

• An explanation of sexual harassment;
• Examples of prohibited conduct that would constitute unlawful sexual harassment;
• Information regarding federal and state laws concerning sexualharassment, and the remedies available to victims of sexual harassment; and
• Information regarding the employees’ rights of redress, and that sexual harassment complaints may be adjudicated through state or federal administrative agencies or the courts.

Effective Jan. 1, 2019

All entities bidding on state contracts will be required to affirm in writing that that they have implemented a written policy addressing sexual harassment prevention in the workplace and that they provide annual sexual harassment prevention training to all employees. Further, state entities may require this written affirmation in contracts that do not involve competitive bidding.

What’s next for New York employers?

It’s important to note that employers with employees in New York City have additional requirements under the recently enacted Stop Sexual Harassment in New York City Act. Also, employers in the state using settlement and arbitration agreements for sexual harassment cases should review those with legal counsel. Next, all employers should review existing sexual harassment prevention policies (or develop and implement new policies) to ensure compliance with the new law. Finally, New York now joins California, Connecticut and Maine in mandating sexual harassment prevention training. Every employer in the state, regardless of size or number of employees, should be prepared to provide all employees with interactive sexual harassment prevention training by Oct. 9, 2018, and annually going forward.

For many employers, especially those without existing sexual harassment prevention policies or training already in place, it’s going to take a lot more than duct tape and WD-40^® to get into compliance.

Frank A. Cania, M.S.Emp.L., AWI-CH, SPHR, SHRM-SCP, is president of driven HR – A USA Payroll Company. Located in Pittsford, NY, driven HR provides human resource consulting services including HR audits, outsourced HR management, employee handbooks, employee training, and a variety of other services. Frank concentrates on FLSA, FMLA and PFL, ADA, Title VII, and Form I-9 compliance, as well as workplace investigations. This article is brought to you by the Rochester affiliate of the National HR Association, a professional HR organization focused on advancing the careers and workplace leadership of HR professionals.