Staff Contact: Frank Kerbein
NYS Department of Labor
State Office Campus
Building 12, Room 509
Albany, NY 12240
Model Documents-Combating Sexual Harassment in the Workplace
On the behalf of The Business Council of New York State, the largest state-wide association of employers, representing over 2,300 businesses, we are writing to express our concerns and share recommendations regarding draft documents developed by the Department of Labor in consultation with the Division of Human Rights in response to Section 201-g of the Labor Law.
The Business Council acknowledges the need for a strong but workable policy for the prevention of unlawful workplace harassment and supports employee training to support these policies. Our concerns and recommendations are outlined below.
Regarding the Model Sexual Harassment Policy
For years, employers have developed policies regarding unlawful workplace harassment that include harassment based on any of the protected classes (age, race, sex, national origin, etc.). The Business Council is concerned that some employers, unaware of their obligations regarding harassment policies for all protected classes, will adopt this policy as is without recognition of other types of harassment/discrimination. We appreciate that this draft model policy is required to address its statutory mission regarding sexual harassment. It is our belief that the Department should remind employers that best practice would be to integrate this state mandated sexual harassment training with broader anti-harassment training.
While there is no place for harassment in the workplace, years of best-practices developed as a result of the U.S. Supreme Court in Burlington Industries Inc. vs. Ellerth (118 S. Ct. 2257 (1998)), have moved employers away from the use of the term “zero-tolerance” in harassment policies. Removal of this term has provided greater flexibility for victims of bad workplace behavior, flexibility for employers in addressing complaints of harassment, and resulted in most complaints of workplace harassment being resolved in a timely manner.
The draft model policy states that “Any individual covered by this policy who engages in sexual harassment or retaliation will be subject to remedial and/or disciplinary action, up to and including termination.” Setting aside the considerable question as to whether or not the Department can mandate that employers adopt policies providing for the “termination” of a private sector employee through these guidance documents, this provision has been shown to have a chilling effect on the reporting of harassing behavior. Individuals may want to report acts of harassment, but may hesitate to do so if they feel the harasser may be terminated as a result. We suggest the Department simply end the above referenced sentence after “…disciplinary action.”
Employees “encouraged” to report harassment vs. “obligated” to report harassment
The affirmative defense described in the Supreme Court’s Ellerth decision require an employer to have a policy against workplace harassment. It also placed obligations on employees to use the employer’s complaint procedure. Failing to do so could result in the employee’s complaint of harassment being compromised. For both the employee’s benefit and to help employers to quickly address dangerous harassment in the workplace, we suggest the policy be modified to require employees to report harassment.
The draft model policy contains strong anti-retaliation prohibitions – as it should. Any employee who, in “good faith” reports an incident of harassment should be provided this protection. In recognition, however, that not all complaints are made in “good faith,” the EEOC has provided guidance on retaliation (EEOC Enforcement Guidance on Retaliation and Related Issues, (August 25, 2016)) that defines and describes what is meant by “good faith” complaints. We suggest the term “good faith” be added to the retaliation section of the draft model policy and that the EEOC guidance be determinative when judging whether or not a complaint is made in “good faith.”
Severe and/or Pervasive.
These terms do not appear in the draft model policy. There is a continuum of behavior – from inappropriate to illegal - that may or may not rise to the level harassment as defined by the statute. The courts have long acknowledged this fact and have relied on the “severe and/or pervasive” standard to determine where on the continuum the offending behavior belongs. We suggest adding these terms to both the draft model policy and draft model training program to be consistent with nearly 30 years of precedent and to alleviate the burden on the courts and administrative agencies tasked with adjudicating such complaints.
This is a “constitutional” term that carries with it significant rights for the accused. These rights include the ability to confront the accuser – this may be the alleged victim of harassment and/or possible third party witnesses who made complaints on behalf of the victim. The Business Council fears that by invoking this concept of “due process,” the draft policy may have a chilling effect on those who wish to make good faith claims of harassment. We also fear this would jeopardize the “confidential to the extent possible” requirements of the model policy and current best practices.
The model draft policy indicates that investigations “should” be completed within 30 days of receiving a complaint and the draft model training materials suggest investigations “should be completed within a reasonable timeframe, for example, within 30 days.” Regardless, we suggest removing the “30 day” standard and rely on the current best practices as suggested by the Supreme Court that the investigation be “timely.” Our concerns are twofold. First, that some employers may rely on the fact that they have up to 30 days to complete an investigation and during that time harassment may be continuing. We believe there is an urgency for these investigation. Second, conversely, in large, complicated cases of harassment – after victims have been provided protection – employers may need more time to collect documents required of the draft model policy (documents, emails, phone records, etc.).
The draft model policy clearly requires written documentation for each claim of harassment. In combination with the concepts discussed in “severe and/or pervasive” above, we would encourage the Department to clarify the need for documentation of every incident of actual or perceived harassment. Other related laws (e.g. Title IX) offer examples where a complete written report would not be necessary.
The policy spends a great deal of time and space discussing external remedies. While The Business Council recognizes an employee’s rights to remedy sexual harassment outside of the employer’s complaint procedure, we would argue that in many instances this would be the least efficient way to do so. Complaints registered with the employer per the policy would result in a more timely resolution than pursuing such a complaint through litigation or a complaint through the Division of Human Rights. It is the overriding goal of an employer to identify and stop any such harassment as quickly as possible. Involvement of an external government agency or attorney would necessarily interfere with an employer’s obligation to quickly address harassment and begin corrective action. A general discussion of external remedies is suggested without the amount of detail (about one and one half page of the seven page draft) required in the draft policy.
Employers are obligated to maintain an environment free from harassment and discrimination – and this has always applied to non-employees. There are questions, however, how the application of this policy to non-employees would work. It is unclear what an employer’s obligation is to non-employees in the workplace. Is it expected that the employer would provide to each non-employee a copy of their complaint procedure? Provide training? Does this extend to non-employees we may never actually see (after hours cleaning staff, etc.). We ask the Department for clarification on this point.
Regarding the Model Sexual Harassment Prevention Training
According to the draft Minimum Standards for Sexual Harassment Prevention and Training, “each employee must receive training on an annual basis, starting October 9, 2018.” According to the Model Sexual Harassment Prevention and Training Instructions for Employers, “all employees should complete sexual harassment prevention training before January 1, 2019.” Newly adopted Section 201-g (2) (c) states that “…such sexual harassment prevention training shall be provided to all employee on an annual basis.” The Business Council believes there is no statutory authority to require that all employees have completed training prior to January 1, 2019 and in fact, it would be impossible to effectively train more than 7.8 million private sector employees in the last quarter of 2018. We have heard this concern raised by a number of our members, who have raised a number of practical challenges: large workforces, multiple work sites, significant number of part time employees, lack of adequate space to do large-scale training, and other factors that would make this short deadline impractical. Doing so would place a serious administrative and financial strain on employers and most likely severely compromise the quality of such training. The Business Council suggests that the Department clarify that employers must complete training of their employees no later than one year from the effective date of the statute - October 9, 2019.
New Hire Training.
The Instructions for Employers referenced above also requires that all new employees be trained within 30 days of their start date. Again, The Business Council and its members believe harassment training is key in developing a workplace free from harassment and that training should be provided as soon as practicable. We suggest, however, that the Department clarify that it would be sufficient for an employer to distribute and communicate the employer’s harassment policy upon the date of hire with training provided as soon as practicable. We would also seek guidance from the Department regarding the “portability” of previous training (i.e. how an employee could document that they have completed training in the previous 12 months).
The draft model training program includes a section that attempts to describe interactive training. It states that the training should include “as many of the following elements as possible.” We request that the Department definitely answer to what degree a live trainer would be required. Live training may be preferable, and many employers will include live trainers in their programs. For many employers, however, live trainers would be impossible due to the location and nature of their workforce. These employers need assurances that web based training that includes a mechanism by which employees can ask questions and receive timely responses from responsible management staff would be sufficient and not subject them to enforcement penalties.
By now, most employers would have completed harassment training for 2018. Assuming that training was sufficient as defined by previous best practices, consultation with training professionals, consistent with court guidance, etc., would the Department still require additional training per the draft Minimum Standards by January 1, 2019? The Business Council suggest that training provided in 2018 be considered sufficient to meet the “annual” training requirement.
The draft Instructions for Employers require that training be provided “in the language that is spoken by their employees.” This stands as another argument for significant revision of any training completion date. New York employer’s employ individuals of many different nationalities, languages and backgrounds. The Department recognizes this. For example the Department’s LS-54 Wage Acknowledgment Form is available on the Department’s website in eight different languages. The actual process of translating the draft model training program into many different languages may not be possible before the proposed training deadline of January 1, 2019.
From time to time employers may hire individuals for assignments as short as one day. These employees may be provided by agencies or unions - occasionally for only one day assignments. We request that the Department allow that providing a copy of the employer’s harassment policy and complaint procedure should be sufficient training for these individuals. Of these individuals, those whose employment status is changed and will likely be employed beyond 30 days, mandated training should be provided.
Regarding the Model Complaint Form for Reporting Sexual Harassment
It is always best practice for employees and employers to correct incidents of sexual harassment as quickly and efficiently as possible. Involvement of third parties, while clearly within the employees’ rights, interfere with an employer’s ability to do this. Question #6 of the draft model complaint form practically encourages employees to file claims with outside agencies. And, in fact, should an employee answer in the affirmative to having filed a complaint with a government agency, initiated court action, or hired an attorney, the employer would be obligated to cease from discussing the employee’s claim of harassment. Having discussed the third party alternatives in the harassment policy and training programs, The Business Council feels the inclusion of this question would be hindrance to timely investigations and mitigation of harassing behavior.
Regarding Non-Disclosure Agreements
21-Day Consideration Period.
We request clarification from the Department regarding employees wishing to sign non-disclosure agreements prior to the end of the 21-day consideration period. We believe the statute allows such early signing. The FAQ’s on the Department’s Combating Sexual Harassment in the Workplace website are less clear. Specifically, Question 5/Answer 5: “if after 21 days, such term of condition is the preference of the person who complained, such preference shall be memorialized in an agreement signed by all parties.” We encourage revision of this answer to contemplate the possibility of early signing of the agreement.
The Business Council and its members have been leaders in the effort to reduce unlawful workplace harassment. It is in this spirit that we ask your consideration of these concerns. We appreciate the time and attention you have already provided us on this important topic. Please feel free to contact me if you have any questions or would like to discuss further. Thank you.
Director, Center for Human Resources