New York Sexual Harassment Campaign 2018
15 Oct

What the Change in New York's Law Could Mean for Your Dealership

A survey in 2017 by CNBC found that one-fifth of American adults had experienced some form of sexual harassment in the workplace. Sexual harassment includes physical assault to unwanted propositions, to even hostile actions taken due to an employee's sexual orientation.

Not secluded to any one industry, sexual harassment has become a widespread problem in the workplace. Now, some states are fighting back.

On April 12, 2018, New York's Gov. Cuomo signed the 2019 New York State Budget into law. This budget also features updates to New York's sexual harassment laws and practices. Starting on October 9, 2018, all employees of private firms (of at least fifteen people) as well as state employees, must adopt a sexual harassment prevention policy and complete mandatory training.

On October 1, 2018, the New York State Department of Labor (“DOL”) unveiled an updated website with final versions of its:

- Minimum standards for employer sexual harassment prevention policies;

- A model sexual harassment prevention policy;

- A model sexual harassment policy notice poster to be displayed in common areas

- A model complaint form; and

- Sexual harassment prevention training materials.

Compliance Training

During the period between July 2013 to 2017, New York settled at least thirty-four workplace harassment cases. costing taxpayers $6 million. In the same period, New York City agencies received 1,312 complaints of sexual harassment by municipal workers against their colleagues.

In an effort to champion workplace compliance, the new law has outlined necessary requirements for training. Employers have one year—until October 9, 2019—to complete their sexual harassment training. New employees must be trained “as soon as possible but not later than one year from hire.”

Whether you're a manager of a dealership or a salesperson, the changes in the New York law will affect you. Aimed to keep the workplace a safe environment for all, compliance training will need to be completed by each employee, regardless of longevity or form of employment.

The training must provide:

- Details of sexual harassment and specific examples of inappropriate conduct

- Detailed information concerning state and federal laws

- Programs and other available materials for victims of harassment

- An explanation of employees' external rights of redress as well as available forms for bringing forth complaints.

The new law also dictates what type of compliance training that is demanded with the updated sexual harassment policies. Employers in New York, including dealership owners, will need to administer interactive training to their employees. “Interactive” meaning the dealership's employees are required to be involved in some form of participation with the training.

These interactions may involve:

- Answering questions on a web-based platform as part of the program

- Accommodating questions that employees may have

- Incorporating a live trainer that is available during the sessions to answer questions

- Requiring feedback from employees about the training and materials

The program must be completed annually by each employee, regardless of full-time or part-time status. Additionally, employers must keep training records for at least three years, as well as signed acknowledgement forms from the employees who participated in the training.

The New York Department of Labor now provides a suite of model training materials that employers may use to comply with their obligations under the law. The model training programs can be found at the DOL website, under the “Training Requirements” tab, and includes a model training syllabus and script, a set of Power Point slides, and sexual harassment prevention case studies.

Changes to Non-Disclosure Agreements

Additionally, the sexual harassment update included in the New York Budget plan includes parameters regarding non-disclosure agreements. Certain conditions in non-disclosure agreements that could prevent a complainant from disclosing facts and circumstances of their harassment were banned as of July 11, 2018. Employers can no longer include such conditions of non-disclosure regarding the facts and circumstances of the incident.

The complainant will have the right to designate whether or not a complaint and its outcome will be confidential. This confidentiality agreement will need to be signed by all parties. Complainants have twenty-one days from the original date of the complaint to establish their preference of confidentiality. Also, the agreement can be revoked within seven days after the execution on the agreement, as per the complainant.

Harassment Prevention Policies

In addition to the changes in non-disclosure agreements, New York employers will need to adopt a sexual harassment prevention policy that is to be distributed to employees. Model policies are published on the DOL website referenced above. Employers can formulate their own policies and are encouraged to work with employment lawyers to do so.

The new policy must include:

- A statement prohibiting sexual harassment and providing examples of what constitutes sexual harassment.

- Detailed information concerning state and federal laws on sexual harassment and the available support to victims.

- An outline of procedures of an investigation into complaints that is confidential and timely.

- An explanation of employees' rights of redress as well as available materials for bringing forth complaints.

- A statement that sexual harassment is a form of employee misconduct and that sanctions will be enforced against those involved in sexual harassment, including supervisors who allow the behavior or actions to continue.

- A statement that it is unlawful for an employer to retaliate against employees who report sexual harassment or testify or assist in hearings regarding the complaint.

Please Remain Compliant

In addition to its changes to the policy and training materials, the DOL also includes a FAQ section on its website, which can be located at the DOL website referenced above.

Employers who already have a secure set of policies and practices in place should still review the new laws to make sure they contain all the requirements and follow the materials that are provided by the DOL in order to change their training. Remember that each employee will need to complete the necessary steps starting in October—including interns.

If you're in need of help with policy development or structuring your compliance training, contact us today!