OUTLINE

• Background of changes, new legislation

• What you have to do (and when you need to do it by)

• Expanded liability

• Additional resources

BACKGROUND The NYS 2018-19 budget, signed in April of this year, amends parts of the:

– State Finance Law – Public Officers Law – General Obligations Law – Labor Law – Human Rights Law – Civil Practice Law and Rules

to include new provisions regarding sexual harassment in the workplace.

WHAT YOU HAVE TO DO

• Consider not using NDAs and confidentiality agreements in regard to sexual harassment claims

• Adopt a sexual harassment policy

• Provide annual sexual harassment training to ALL employees

Consider not using NDAs for sexual harassment claims (effective 7/11/2018)

Part of the revised General Obligations Law and the Civil Practice Law and Rules • Non-disclosure or confidentiality agreements are now

prohibited in settlements/discontinuances of sexual harassment claims “unless the condition of confidentiality is the complainant’s preference.”

• So, if the claimant requests an NDA, it is permitted, BUT only if the claimant is allowed: – 21-day review period of the NDA (which

time period cannot be waived or shortened) – 7 days after the review period to revoke

the NDA (revocation period cannot overlap review period)

• All employers, including municipalities, must adopt a sexual harassment policy to, or exceeding, standards set forth by NYS Labor Department, in consultation with NYS Division of Human Rights

• Policy must apply to all employees, including part-time, seasonal, etc. (We recommend including volunteers in the policy as well)

• Annually provide the policy to all employees, and obtain signature of receipt

• Sexual harassment policy must be posted in the workplace

Adopt a sexual harassment policy (must be done by 10/09/2018)

Adopt a sexual harassment policy continued

Your sexual harassment policy must include: • Prohibition on sexual harassment with examples of

unlawful conduct • Info about state/federal laws and remedies to address

sexual harassment

• State that additional local laws may apply

• Standard complaint form • Procedure for timely and confidential

(to the extent possible) investigation of sexual harassment complaints, that ensures due process for all parties

Adopt a sexual harassment policy continued

Your sexual harassment policy must include:

• Employees’ rights of redress and administrative/judicial forums available to them (e.g., NYS Division of Human Rights and Equal Employment Opportunity Commission)

• Statement that sexual harassment is misconduct that will result in sanctions (i.e., discipline) against the harasser AND any supervisor who knowingly allows such misconduct

• Statement that retaliation is prohibited for making a complaint, or assisting/ testifying related to a complaint

Provide annual sexual harassment training (Must be completed by 10/09/2019 for current employees;

new hires should be trained as soon as possible)

Sexual harassment training for ALL employees (Trustees and organizational board members should also be included) must be interactive. Examples of interactive training include:

• Web-based: questions at end of each section, and employee must provide correct answers

• Web-based: employees have option to submit questions online and receive a prompt answer

• In-person: presenter asks questions or give employees time to ask questions during presentation

• Web-based or in-person: provide a feedback survey for employees to turn in after completing training

EXPANDED EMPLOYER LIABILITY

Contractors

Vendors

Consultants

Subcontractors

Employees of all contracted providers

Any other person providing services in an employer’s workplace

Individuals who are not employees are now protected in the new sexual harassment legislation:

• Harassment can be a non-employee harassing an employee, or vice-versa

• Harassment based on gender identify is covered by this legislation

EXPANDED LIABILITY (for officers/employees)

A new section added to the Public Officers Law requires that:

• Officers/employees reimburse their employing municipality a “proportional share” for sexual harassment awards paid by the municipality to plaintiff employees if the officer/employee is found to be personally liable for intentional wrongdoing related to a sexual harassment claim.

• Officers/employees must make reimbursement within 90 days of the municipality’s payment – Wages can be garnished

– Former employees are subject to debt collection

EXPANDED LIABILITY (for officers/employees, continued)

Finding of personal officer/employee liability relies on NYS Human Rights Law. Any of the below can be criteria to a finding of person liability:

• Direct participant in sexual harassment

• Aiding and abetting sexual harassment

• Individual that has the power to do more than just carry out personnel decisions of others

RESOURCES Model sexual harassment policy: https://www.ny.gov/sites/ny.gov/files/atoms/files/SexualHarassmentPreventionModelPolicy.docx

Model complaint form: https://www.ny.gov/sites/ny.gov/files/atoms/files/CombatHarassmentComplaintForm.docx

Model sexual harassment training program: https://www.ny.gov/sites/ny.gov/files/atoms/files/SexualHarassmentPreventionModelTraining.docx

PERMA Safety Institute courses: Sexual Harassment Prevention for Employees – course code EM51

Sexual Harassment Prevention for Supervisors – course code EM25

To satisfy the new regulatory requirements, after taking the courses,

supervisors must be available for employees to ask any questions

and/or give feedback on the course.

On-site sexual harassment training for PERMA members: Contact Sigrid Vompa, safety training coordinator, to schedule

svompa@neami.com, 518-220-0386

QUESTIONS

Ronni Travers, President, Public Sector HR Consultants rtravers@publicsectorhr.com

518-399-4512

John Corcoran, Partner, Hancock Estabrook, LLP jcorcoran@hancocklaw.com

315-565-4500

Disclaimer: This presentation is for informational purposes only and is not intended as legal advice.