Watch Out, New York Employers—Sexual Harassment Complaints Can Now Become Public Record
Although the world seems to have woken up to it over the past year, sexual harassment in the workplace is nothing new.
Before the #MeToo movement went viral—before states such as New York passed sweeping harassment prevention laws—countless people encountered or experienced forms of sexual coercion, humiliation, and boundary-crossing on the job. Nearly everyone of a certain age has a story about a suggestive message, inappropriate remark, rumor, or incident of unwanted touching, intimidation, or assault. In some industries, including Hollywood and Silicon Valley, the preponderance of these issues is even considered an “open secret.”
All of which begs the question: Why didn’t change happen sooner? How could a secret remain out in the open—alluded to, sometimes nearly acknowledged outright, but never confronted—for so long?
In two words: mandatory arbitration.
A mandatory arbitration agreement obligates an employee to resolve any dispute with their employer outside of court. Companies looking to avoid negative publicity and substantial legal costs have typically included such clauses or provisions in their contracts with employees.
We are now seeing a groundswell of legislation inspired by the #MeToo movement with the intention of ending the era of open secrets. More and more jurisdictions are considering banning mandatory arbitration (while several companies have recently opted against it themselves). And in New York, which now prohibits the practice, we’re starting to understand what happens in cases when employers aren’t able to handle employees’ claims internally.
Over the past few weeks, I’ve been speaking with employers in New York who are stunned to learn that their employees’ harassment complaints may become public record. Specifically, under new state statute, workers can now file reports of harassment with the Division of Human Rights (“DHR”).
The DHR not only has the power to initiate a public hearing, but also maintains an index of records which anyone can submit a records request under the Freedom of Information Law, or “FOIL”. This means that if one of your employees files a harassment complaint, anyone can submit a FOIL request for those records. Reporters, customers, insurers, vendors, your bank—any party doing due diligence on you, your company, or the parties involved in the alleged incident can submit a request using the FOIL NY online request form
Fortunately for employers (as well as many employees, as people who have experienced harassment often desire privacy), a complaint doesn’t have to become public record in order to have it resolved. With the proper workforce reporting system in place, you can quickly and efficiently collect, address, and attempt to resolve complaints internally before the DHR is involved. This has benefits for both the employee and employer:
- The employee sees that the complaint is taken seriously and investigated promptly; it’s not just lip service to the State, like a static poster in a breakroom.
- The employer has the opportunity to resolve the complaint quickly and fairly while maintaining a full record of all steps taken to resolve it.
- The employer’s company culture—and employee retention—benefits. No one wants to work at a company that “kind of” takes harassment seriously.
Moreover, that same system also tracks and captures all details, so you can demonstrate defensible proof of compliance in the event that an auditor or regulator asks you for your records.
Our automated workforce compliance solution, Compligo, provides all of the above—supported by training courses and content developed in collaboration with the attorneys of Fisher Phillips. Employers in New York are already using it to stay ahead of their legal obligations, avoid negative publicity, and protect their employees’ privacy.
Sexual harassment may be nothing new, but the example our customers are setting sure is. See how easy it is to take a stand against harassment in your workplace while minimizing risk and maximizing transparency.
If you can remember the last time, I applaud you: you’d probably be a fantastic auditor. Or perhaps you are an auditor; few have the stomach and skills to do what you do. 