Fisher Phillips Attorney Melissa Osipoff on NY’s New Sexual Harassment Prevention Law
Time’s up. Last week, the most comprehensive sexual harassment prevention law in our nation’s history went into effect in the state of New York. Employers who do business in the state now need to comply with New York Labor Law Section 201-g, which includes strict training, reporting, and policy adoption requirements.
If you’re a regular reader of ours, you knew that already. Here on the Compli blog, we’ve spent the last few weeks covering the ins and outs of the new regulations, the state’s model training and policy materials, and the potential risks of noncompliance. We’ve also zoomed out to the larger campaign against harassment in the workplace, exploring how lawmakers in other states, such as California, are taking cues from their colleagues in New York.
Don’t say we didn’t warn you.
But let’s say you’re new here—or, for the sake of argument, let’s imagine you’ve tuned all our articles and advisories out. What do you need to know right now to comply with New York’s harassment prevention laws?
Fortunately for those new readers and (hypothetical) stragglers out there, our friends at Fisher Phillips are here to help. We recently sat down Melissa Osipoff, a labor and employment attorney with the firm in New York, to go over the fundamental elements of 201-G. Here are a few highlights from our conversation:
COMPLI: Does New York’s new law apply to employers of any size?
MELISSA: It does. As long as you have one employee that’s working in New York, then this law applies to you.
What do policies need to look like for employers in New York State to be compliant?
There’s a number of things that need to be included in a compliant sexual harassment policy. It needs to include a statement prohibiting sexual harassment, examples of prohibited conduct that would constitute sexual harassment, information concerning the federal and state statutory provisions concerning sexual harassment, and remedies that are available to victims, along with a statement that there may be additional applicable local laws. It also needs to include a standard complaint form, the procedure for timely and confidential investigation of complaints, and a statement informing employees of their rights of redress, and all available forms of adjudicating sexual harassment complaints—both administratively and judicially. The policy also needs to include a statement that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals who engage in sexual harassment, and also against managers and supervisory personnel who knowingly allow such behavior to continue. And then, finally, it needs to include a statement that retaliation against individuals reporting sexual harassment, or who testify or assist in any proceeding regarding sexual harassment, is unlawful.
The New York Department of Labor recently released a model anti-harassment policy as part of its updated guidance. Is that something employers can take and use freely, or do they need to review it for their specific business first?
They can take it and use it as a template, but they need to carefully review it and not just adopt a policy that isn’t in line with their actual practices. They’ll want to review that policy, make sure that it conforms to what they actually do to handle harassment complaints, and either amend the policy to be in line with what their practices actually are or amend practices to make them in line with what the policy will be.
I understand there’s new training requirements as well.
That’s right. In addition to the policy requirement, the law now requires that all New York employers conduct annual sexual harassment prevention training. And just like the policy, there’s a detailed list of what the prevention training must include as well. The training needs to include an explanation of sexual harassment. It also needs to include examples of conduct that would constitute unlawful sexual harassment, information concerning the federal and state statutory provisions concerning sexual harassment and remedies that are available to victims, and information concerning employees’ rights of redress and all available forms for adjudicating any complaints they may have. Finally, it needs to include information that addresses both conduct by supervisors and responsibilities that supervisory personnel have under the policy.
Employers that have sexual harassment training in place already need to really review their training and make sure that it hits on all of these requirements in order to be compliant. Employers that haven’t done training in the past need to be prepared to do so and need to be prepared to have a compliant training that hits on all of these requirements.
With this regulation coming into effect October 2018, when do existing employees need to be compliant with the new regulations?
The state has clarified that all employees need to complete sexual harassment training by October 9, 2019, a year after the implementation of the statute.
How about for new employees?
New York State has encouraged employers to train new hires as soon as possible because employers may be liable for the actions of their employees immediately upon hire. Because of that, it’s imperative that employers train those new employees as quickly as they can when a new hire comes on board.
There are a number substantive elements the new laws require in terms of training content specifically. What else has the legislature taken a look at as far as the training being accessible and digestible?
The law requires that the sexual harassment training be interactive, which means that it needs to require some form of employee participation or feedback by those that are being trained. This can be done in person, via phone, online via a webinar or a recorded presentation, so long as it qualifies as interactive. So, the training could be web-based with questions that are asked of employees as part of the program, or training that accommodates questions that are asked by employees, a live trainer being made available during the session to answer questions, or requires feedback in some capacity from employees about the training and the materials that are presented.
You mentioned having a sample complaint intake form. Tell us a little bit about what’s important in that complaint intake form and why it’s essential.
The law requires that, as part of the sexual harassment policy, there be a standard complaint form employees can use to report any sexual harassment complaints. It includes basic information such as the employee’s name, but then also includes information about who they allege is harassing them, and then some detailed questions about what type of behavior is occurring. This is really important for the employer so that they can understand what conduct is at issue and be able to investigate it. The complaint form also includes information for the employee to list any witnesses to any of the conduct at issue as well, which is also important for employers, so they know who they can talk to to investigate the complaint.
Have you seen trends in either individual enforcement actions or regulatory governing body enforcement actions, or do you expect those to increase with the release of this new regulation?
Both. We have seen an uptick in harassment complaints, I think, stemming from the #MeToo movement, and I think we’ll continue to see an uptick in complaints as this new harassment policy and training rolls out and employees become more educated on what harassment is and what their options are for reporting it, both internally to their employer and externally to courts or regulatory agencies.
How would you respond to an employer who says, ‘I’ve never had a complaint come forward. I’ve never been sued for this. What’s my exposure?’
Well, for one, it’s a requirement under the law to have a policy and training in place. In order to be compliant with New York law, you need to include that. Two, you know, it just takes one complaint. Just because you haven’t had something go wrong in the past doesn’t mean that you won’t have an employee come forward in the future raising a harassment complaint, and that’s why the goal here is to prevent that from ever happening. You want to have this robust policy and training program in place not just to be compliant with New York law, but to make sure that you’re preventing harassment in the workplace and employees know how to seek redress for that if it does occur.
With all of these new requirements coming out, there’s going to be your employees, there’s going to be your managers, there’s going to be existing employees, there’s going to be new employees. This is a lot for employers to take on. What do you recommend as far as getting employers up-to-date with this new regulation?
The first step is looking at anything that you already have in place. Does the company already have a harassment policy in place? Does it already have a training program in place? If yes, then that employer should go through the policy and the training carefully to make sure that it meets the requirements of New York law. They may need to get outside assistance from counsel to make sure that they are meeting the requirements. And if they don’t have something in place already, now’s the time to adopt it. The model the state has published is a great starting point for employers starting from square one. Given the robust requirements of the new law, it’s very likely that employers will need to update both their existing policies and their training materials in order to be compliant with this law.
For more guidance and resources on New York’s new sexual harassment prevention law, and to discuss your organization’s program with a compliance expert, click here.
