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Sexual Harassment Prevention

Background

UPDATE! the New York State Department of Labor (NYDSOL) has released a draft sexual harassment policy and training materials. The materials are open for review and comment from the public.

The 2018 New York State budget included new regulations addressing sexual harassment in the workplace that will be effective on October 9, 2018 for all New York employers, including agricultural employers. All employers will be required to have a sexual harassment prevention policy and to provide annual, interactive sexual harassment prevention training for all employees. (Read more about it from the law firms Fisher Philips here and Proskauer here.)

The legislation calls for the New York State Department of Labor (NYDSOL) to develop a model sexual harassment policy and training program for employers to adopt. As of this writing (8/16/18), no model policy or training is yet available and the law becomes effective in less than two months.

It is impossible for us to know exactly what will be included in NYSDOL’s model sexual harassment policy and training until it is released, so any guidance provided here will need to be updated when that time comes. However, some proactive employers are already asking how they can get started with policies and training that will be close to the eventual requirements. The following information is provided for those who want to start now. After all, potential harassers aren’t waiting for the new policy, so employers should take positive action to protect employees and their organizations from sexual harassment.

Guidance

Two New York state documents are available right now that can help you get started:

Five Steps to Preventing Sexual Harassment

1. Prepare a written policy.

The new law definitely requires that all employers have a written policy against sexual harassment. We won’t know exactly how to comply with the new law until NYSDOL issues the model policy. Until then, employers can get started by using example policies meant to comply with previous sexual harassment law and designing procedures that will work for the farm and effectively prevent sexual harassment. Go to the Employee Handbook page to find some helpful links to documents that contain harassment and sexual harassment policies. Download this educational Sexual Harassment Prevention Policy Starter document that will help you think through and begin developing a sexual harassment policy for your business.

2. Provide the policy in writing to employees.

A policy isn’t worth much unless employees know about it. The new law requires employers to provide employees with a written copy of the sexual harassment policy.

3. Train everyone at hiring and annually.

Just giving employees a policy isn’t good enough. Training is needed to be sure that employees understand sexual harassment and how they can prevent and report it. Training is also important to send the message that the employer takes sexual harassment seriously and will not tolerate it. You should plan to conduct sexual harassment prevention training each year for all employees. New employees should have a brief review of your sexual harassment policy within a week of their start date, you don’t want someone working for you for six months until they learn about sexual harassment at the annual training.

New York’s new law has some specific things to say about the training, for starters, it has to be “interactive.” What they mean by “interactive” is not clear but any training that includes examples and the chance for employees to ask questions should meet this standard. The training must also include (quoting directly from the law):

  1. An  explanation  of  sexual  harassment  consistent with guidance issued by the department in  consultation  with  the  division  of  human  rights;
  2. Examples  of conduct that would constitute unlawful sexual harassment;
  3. Information concerning  the federal  and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment; and
  4. Information  concerning employees’ rights of redress and  all  available  forums  for  adjudicating complaints.

Some of these requirements just won’t be clear until NYSDOL gives us more guidance.

4. Act immediately when there is a complaint of sexual harassment or management becomes aware of a harassing situation.

No employee should have to work in a stressful and threatening environment caused by sexual harassment. Management needs to take action immediately in response to a complaint of harassment. Depending on the situation, these actions will include:

  1. Listen carefully to the complaint and be sure to take any complaints of harassment seriously.
  2. Assign a responsible person to investigate the situation including talking with the accused person and any witnesses. In small businesses, without a designated HR person, the investigator will often be an owner. Small businesses, such as farms, should also consider hiring an outside person to investigate such as an attorney or human resources professional, especially when the relationships involved are very close. For example, it would be very difficult for a farm owner to investigate in an unbiased and calm way when his son is accused of harassing another employee.
  3. Decide whether the behavior is sexual harassment.
  4. Plan and carry out discipline and/or assignment changes as needed. Communicate your decision and action plan clearly with the accused and the accuser.
  5. Document everything.

Read more in this post: How to Handle Sexual Harassment Complaints: A Primer for Small Businesses.

5. Document every action you take.

As an employer, it is wise to begin documenting all of your employee-related actions. You should keep a paper or electronic file (or both) for each employee and diligently record all significant actions or events that take place. In the context of sexual harassment prevention, consider recording the following items:

  • The date on which you provided the policy to your employee. You might also have your employee sign an acknowledgement that the policy was received and understood.
  • The date at new hire and in each subsequent year on which your employee was trained in sexual harassment prevention.
  • Carefully document any sexual harassment incidents involving an employee, even minor ones. For example, an employee might tell an offensive joke that another employee considers sexual harassment. Management follows up, addresses the problem, and everything is resolved. Keep track of every action that was taken in the resolution procedure, record who, what, where, when, why, and how. You might need this information when another incident occurs later with the same employee, or if you need to defend your actions in court against a claim of not dealing with sexual harassment appropriately. Detailed, written records that demonstrate management’s good faith efforts are much better than faulty memories in a court of law.

Other References

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