HR Connection: Changing employee behavior regarding sexual harassment

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My father was known for his colorful sayings (many of which would be inappropriate to repeat today), so I can’t help but think of him when a situation needs a little extra emphasis. Based on the number of calls and email I’ve received recently, a “Sammyism” is needed.

On Aug. 23, 2018, New York State released its draft guidance for employer compliance with the new sexual harassment prevention laws. It appears, as my father would say, “the poop is finally hitting the propeller.”

The draft guidance includes: 1) a model sexual harassment prevention policy, 2) a model sexual harassment complaint form, 3) a model sexual harassment prevention training program, 4) minimum standards for employer sexual harassment prevention policies and trainings, and 5) a list of frequently asked questions (FAQs) on the new requirements. All of the documents, including the FAQs, are drafts and open for public comment until Sept. 12, 2018, and therefore subject to change prior to the Oct. 9, 2018 effective date.

NYS also released its strict compliance requirements, which include:

• All employees must receive sexual harassment prevention training, which meets or exceeds the minimum standards established by NYS, between Oct. 9, 2018 and Jan. 1, 2019, and then annually going forward;
• Employees hired after Jan. 1, 2019 must receive sexual harassment prevention training within 30 calendar days of hire; and
• All employees, including temporary and part-time employees, must receive sexual harassment prevention training — even if working for the employer, or are simply working in NYS for a single day.

Sexual harassment prevention policy

Also, effective Oct. 9, 2018, all employers in NYS must implement a sexual harassment prevention policy that meets or exceeds minimum standards set by the NYSDOL, which include:

• A statement prohibiting sexual harassment “consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;”
• “Examples of prohibited conduct that would constitute unlawful sexual harassment;”
• “Information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment,” and a statement that local laws may also apply;
• The use of a standard complaint form;
• “A procedure for the timely and confidential investigation of complaints that ensures due process for all parties;”
• A notice to “employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;”
• A clear statement “that sexual harassment is considered a form of employee misconduct,” that individuals engaging in sexual harassment, as wells as supervisors and managers who knowingly allow such behavior to continue, will be appropriately disciplined; and
• A clear statement “that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.”

Employers must prominently post sexual harassment prevention policies in all work locations and provide a copy to employees at the time they are hired. The policy may be provided electronically, as long as employees have access to an employer-provided computer and printer during work time to review and print a copy for their records. Further, employers are encouraged to obtain a signed acknowledgement from each employee.

Standard complaint form

While a draft model complaint form was provided, the amended statute does not require employers to use a specific complaint form. However, the employer’s standard complaint form should include:

• A statement that the employer must follow its sexual harassment prevention policy and investigate any claims when they are submitted (note, employers may not require the submission of a written complaint, but must complete a complaint form if one is not submitted);
• A link to the NYS website, Combating Sexual Harassment in the Workplace;
• The complainant’s information, including their preferred communication method, and their supervisor’s contact information;
• Details of the complaint, including, but not limited to, dates of alleged incidents and names of any witnesses;
• Voluntary questions regarding whether the complainant has previously complained to an administrative agency or court, and whether they are represented by an attorney.

Sexual harassment prevention training

NYS released a 24-page training guide which includes employer instructions, a minimum training standards checklist, a model training script and sexual harassment case studies (including hypothetical scenarios).

According to the guide, an employer’s sexual harassment prevention training must be interactive and include as many of the following four elements as possible: 1) be web-based, including questions that must be answered by the employees, 2) be able to accommodate questions asked by employees, 3) include a live trainer to answer questions during each training session, and 4) require feedback from employees regarding the training and the materials.

Employers must provide training that meets or exceeds the state’s minimum standards, which require the sexual harassment prevention training:

• Be interactive;
• Include an explanation of sexual harassment consistent with the state’s guidance, as well as examples of unlawful sexual harassment;
• Include information explaining local (if applicable), state, and federal statutory provisions regarding sexual harassment and remedies available to victims of sexual harassment;
• Include information regarding employees’ rights of redress and all available forums for adjudicating complaints; and
• Include information addressing conduct by supervisors and any additional responsibilities supervisors may have.

Employers should also note that they may take appropriate disciplinary action if an employee refuses or fails to complete sexual harassment prevention training in the required time.

Having conducted dozens of sexual harassment investigations and hundreds of sexual harassment prevention training sessions, I strongly urge everyone to treat sexual misconduct as a serious matter. Employers have an opportunity to send one of two messages to their employees, customers and vendors. Those who intentionally meet the bare minimum requirements and provide off-the-shelf canned training as a way to “check the box” will send the message that addressing and eliminating sexual harassment isn’t important in their workplace. At some point, they should expect “the poop will hit a big propeller.”

On the other hand, employers taking this opportunity to create thoughtful and comprehensive sexual harassment prevention policies and practices, vigorously enforce those policies and provide training that is tailored to their business, will send the message that a respectful, tolerant and harassment-free workplace is a core value and something everyone should expect and demand. What message do you plan to send?

Frank A. Cania, M.S.Emp.L., AWI-CH, SPHR, SHRM-SCP, provides human resource consulting services such as employee training-including sexual harassment prevention, harassment investigations, employment policies and employee handbooks, HR audits, and a variety of other services. Frank concentrates on state and federal regulatory 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.