Kevin J. Mulvehill Discusses New York State Sexual Harassment Policy

After a swift review of public feedback, New York’s policy addressing sexual harassment in the workplace is now in effect.

Labor and employment attorneys spent recent weeks counseling clients on what the law means and what last-minute changes to the policy should be incorporated. They include Amy Hemenway, partner at Harter Secrest & Emery LLP; Erin Torcello, member at Bond Schoeneck & King PLCC; and Kevin Mulvehill, partner at Phillips Lytle LLP.

“One of the questions that we have been asked is what options are available for employers to provide the training,” Hemenway said.

While some businesses occasionally offer training to prevent sexual harassment or do so as part of an onboarding package for new hires, it’s now mandatory that workplaces statewide have annual prevention training.

All employees are expected to be trained, including vendors or temporary workers.

Training must be interactive, contain examples of harassment, outline New York statutes and explain to employees the proper steps to report an occurrence.

It must be clear to employees that they can always ask questions regarding a company’s policy, Torcello said Oct. 4 at a briefing that Bond Schoeneck held for clients.

Training must be completed by Oct. 9, 2019, and for new hires as soon as possible, the attorneys said.

“It’s not clear what the penalties will be for not complying,” she said. “While it’s stressful, I am not sure there are any penalties (at least not specified yet).”

New York state may conduct audits to ensure that standards are in place, she said. If a company is non-compliant or doing something incorrectly, Torcello said it will be made aware of what needs to change.

“It’s a good idea to seek legal advice” to ensure your workplace is compliant, Mulvehill said.

For many companies, the changes may not be significant because many have training in place that can be easily adapted, Hemenway said.

“The requirements really put many of the best practices into a mandatory format,” she said. “The principles are not really new to us as attorneys.”

Employers should customize their training courses to their industry and business setting and they can hire a third party to help, Hemenway said.

It’s also a good idea to have separate training for managers since “the message is different,” Torcello said.

While training isn’t required to be complete until next fall, employers were required by last week to have implemented and distributed a new sexual harassment prevention policy that follows the state’s final specifications.

Included in that was a complaint form.

Victims of sexual harassment may file complaints through the state website: dhr.ny.gov/complaint.

Torcello said employers must use due process when investigating complaints and victims are encouraged to submit materials or evidence they believe will aid their case. Materials include digital evidence such as text messages or social network posts.

Sexual harassment is not limited to the workplace, Torcello said.

“If the conduct outside impacts the workplace, (employers) have an obligation to do something about it,” she said.

If harassment is reported, the employer must begin an investigation. Employers can’t be held liable for preventing what they don’t know about, Torcello said.

Mulvehill said he and Phillips Lytle provide guidance for trainers and offer advice to clients on how to conduct investigations.

Employers also must determine if and how they need to update their corporate policy to meet the new state requirements, Mulvehill said.

“Many of our clients may have locations in multiple states,” he said.

They can frame policies and training plans companywide or simply adapt their New York location to the new rules, he said, “depending on preference and other factors.”