D-Day For New York’s Sexual Harassment Law

October 9, 2018 at 8:43 am Leave a comment

Image result for d day picturesWhen word got out that employers had until October 2019 to comply with the training requirements of New York’s comprehensive new sexual harassment prevention requirements, I swear I could hear a collective sigh of relief across the New York credit union industry. This was one more issue that you could push to the back burner as you deal with more immediate concerns. Unfortunately there are many things that you should have in place by today.

First, you should have an updated policy which incorporates New York’s requirements. As I’ve said before, you can accomplish this by either adopting New York’s model policy or incorporating New York requirements into your existing policy. If you choose the latter approach, your policy at a minimum must:

  • prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
  • provide examples of prohibited conduct that would constitute unlawful sexual harassment
  • include 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
  • include a complaint form
  • include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties
  • inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
  • clearly state 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
  • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

These are baseline requirements of New York state law as it exists today, not a year from now. The policy and by implication the complaint form should be prominently located where employees can access it. Personally I would display the complaint form prominently on your website so no one can say you tried to hide it from them. And of course, you should document that all employees have been made aware of your updated policy.

Secondly, as you can see, the policy requires that you have appropriate procedures in place to timely and confidentially investigate sexual harassment complaints in a manner that ensures due process for all parties.

Third, one of the unique twists of New York state law is that it both protects third-parties from sexual harassment which takes place at your credit union as well as holds you responsible for the conduct of third-parties working at your credit union. Here’s one of the examples provided in New York’s guidance: Q3. The copier repair person always makes sexual jokes which are upsetting to me. My boss says that she can’t do anything about it.

A3. Your employer is required to provide a workplace free from sexual harassment, regardless of who the harasser is. Your employer is required to take appropriate action based on your complaint. If you do not trust how your employer will react, you should file a complaint with the Division of Human Rights.

One of the questions I would certainly be asking your HR attorney is what steps you can or should be taking to mitigate the risk posed by the copier repairman? What I would do is include in all vendor contracts language in which the vendor warrants that their employees have been made aware of and are trained on both federal and state law prohibitions against sexual harassment. I would also place this poster included in the guidance material in a prominent place in your office. While this is not required, it will help to guard you against accusations that you didn’t put third-parties on notice with regard to inappropriate behavior.

Fourth, make sure that any non-disclosure agreements you enter into with your employees do not include language mandating that settlements involving allegations of sexual harassment be kept confidential. As explained in the state’s Q&A, The law now generally bans “such nondisclosure agreements, except for those where the person who complained prefers such a nondisclosure agreement. Specifically, the new law takes away the authority of employers to include, or agree to include, any term or condition that would prevent the disclosure of the underlying facts and circumstances of the harassment unless the condition of nondisclosure is the preference of the person who complained.”

Fifth, all of this should be discussed with and approved by your board. In addition, I would also put the board on notice that it is also subject to this framework.

How is that for an HR to-do list the Tuesday after a long weekend?




Entry filed under: HR, Legal Watch, New York State, Regulatory. Tags: .

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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