In just weeks, employers in New York state must comply with new regulations to combat sexual harassment in the workplace.
Starting Oct. 9, all employers, regardless of size, must do the following:
- Have a policy regarding sexual harassment;
- Complete training for all employees in accordance with the new guidelines by year-end;
- Facilitate training for new employees within 30 days of their start date;
- Establish annual sexual harassment training for all employees.
Until last week, the state accepted public comment on a sample policy, a form for employees looking to file a complaint and a template of requirements for educating employees.
The training “is going to be most employers’ biggest challenge,” said Tammy Riddle, a member in the business law and employment practice group at Hurwitz & Fine PC.
“The question is how many of them actually know,” Riddle said. “I don’t think this is on everyone’s radar yet.”
Amy Habib Rittling is a partner at Lippes Mathias Wexler Friedman LLP whose practice includes labor and employment matters.
“There are a lot of employers that don’t provide training now,” she said. “Training is certainly going to be a cost and a challenge that (companies) are going to have to manage now on an annual basis going forward.”
Indeed, it’s a top concern of clients, she said.
“I can’t think of another area that has created more calls and anxiety,” Habib Rittling said. “It’s an ongoing obligation that is going to be costly and burdensome, especially to smaller employers.”
When the documents put together by the Department of Labor and Division of Human Rights become official this month, companies will not have much time to finalize plans for implementation.
“I think timing is the biggest issue right now,” said Diane Perri Roberts, an attorney who specializes in sexual harassment law and employment litigation at Lipsitz Green Scime Cambria LLP. “The logistics of getting this up and running are pretty onerous on businesses in this short time frame.”
The biggest adjustment for companies will be the new training criteria, area attorneys agreed.
“I think the training is the biggest thing employers will have to tackle now,” Riddle said.
“It needs to be ‘interactive’ is a buzzword that’s being used in the legislation,” Habib Rittling said. “The more elements that you involve, the more likely it meets stipulations.”
Training should make clear what sexual harassment is along with outlining state and federal laws; offer examples of harassment in the workplace; present possible remedies for victims and how to file a complaint; and address the responsibility of supervisors.
“It seemed to indicate to me (that employers need) to have a live trainer available to answer questions,” Riddle said. “Employees need to get feedback during the training. They should be able to “ask questions and get answers.”
Many cite the #MeToo movement as the impetus for new legislation, but the state as far back as 2015 had begun framing changes. New York has been seen as progressive regarding workplace equality under Gov. Andrew Cuomo. In 2015, the state adopted regulations to ban discrimination and harassment against transgender people.
New York City has implemented its own new legislation, too. Starting this month, all employers are required to openly display anti-sexual harassment posters and distribute them to employees.
Perri Roberts said the state is still catching up to what California put in place a few years back.
“Much of the same New York is implementing,” she said.
But the need to have a live trainer on hand is “where I see it logistically being a problem,” Perri Roberts said.
She said it’s unclear if a live trainer must be present in scenarios with a lone new employee. “That’s something I don’t think is answered right now,” she said.
And while larger companies with HR departments are more equipped to take on the new protocol, smaller businesses might be left in the lurch.
“This is definitely going to be very confusing for them,” Perri Roberts said.
On its website, the state Division of Human Rights offers information for companies getting set up. Victims of sexual harassment can file a claim through the state directly on the website.
“I think that the scope of the robustness is going to be a big and significant change for employers,” Habib Rittling said.
The state will review public comments regarding the sample documents to determine if changes will be made. Habib Rittling said changes could push back the deadline. Either way, once finished, the countdown will begin for employers to get things in order.
“I don’t know that (the state’s) going to heed to suggestions in this instance,” Perri Roberts said, adding that the DOL and Division of Human Rights had set hard deadlines internally to move the process along. “Whether or not the agency is going to give a little more leeway, I don’t know.”
Said Riddle: “Everyone is sort of anxious to see where these land in the final format. I don’t know that there’s going to be broad stroke changes from what’s in there now. Most employers should already have something to work with. That shouldn’t be a light bulb going off for most people.”
Some “hand-holding” from the state while employers make the transition would be a good thing, according to Perri Roberts.
“I think it would be helpful if the agency offered some sort of training for employers,” she said. “It’s kind of one-focused right now.”
Two other red flags stood out in the new regulations, she added. The deadline to submit complaints wasn’t specific enough, she said, and the law needs to be clearer how to discipline an employee for making a false accusation.
“I’d like to see something in here that defines what good faith is (in that context),” she said of the latter.
Meanwhile, when a complaint is filed, employers must act within 30 days, but she said there’s no statute for when victims must come forward with a harassment charge. Perri Roberts recommends coming forward sooner rather than later.
“I’m not saying (the state should) put a hard and fast line ... but there should be some stronger, more encouraging wording (for victims) to come forward as soon as possible so investigations can’t be hampered,” she said. “There are a lot of reasons to encourage people to come forward faster. I think that can be beefed up a bit.”
How the state determines whether employers follow protocol remains to be seen, Riddle said, adding, “That will unfold as we go forward.”
This may not be the end of changes coming down the pike, either. She said lawmakers may tweak or clarify things as time progresses, making updates where needed.
“I think what employers need to do is get guidance,” Riddle said. “The law is always evolving.”
For the original article, visit: https://www.bizjournals.com/buffalo/news/2018/09/17/attorneys-and-employers-prep-for-new-state-sexual.html