NYS Releases Model Sexual Harassment Policy

NYS Releases Releases Model Sexual Harassment Policy

The New York State Department of Labor and Division of Human Rights released a model sexual harassment policy and complaint form that employers may adopt, to comply with the new State law intended to combat sexual harassment in the workplace. The State is soliciting comments until September 12, 2018 regarding this policy, so it is technically just a draft.

Employers must adopt sexual harassment policies that meet minimum standards by October 2018. According to the FAQ’s, “all employees must complete the model training (link) or a comparable training that meets the minimum standards (link) by January 1, 2019.” Employers are not required to use the model policy created by the State as long as their policy meets state guidelines.

Employers training programs must meet minimum standards to comply with the new state law. They must, for instance, be interactive and not in a purely lecture format. They must contain an explanation of sexual harassment and examples of sexually harassing conduct, so that it is clear for employees to understand what type of conduct is considered to be unlawful. Training must include information concerning employee’s rights to file complaints, and all of the different agencies and forums for filing complaints of sexual harassment. There must also be information about how to file a complaint if the employee’s supervisor is engaging in the improper conduct.

What are the next steps?

Comments are being accepted until September 12, 2018. After that, there may be some changes to the model policy and other guidance, based on the comments the agency receives.

Please feel free to contact Law Office of Laura Wong-Pan PLLC with any questions related to sexual harassment in the workplace, including training and preventive practices.

Ulster County, NY Enacts Anti-Discrimination Law

Just last week, the Ulster County Legislature adopted The Ulster County Human Rights Protection Act of 2018. The Ulster County Commission of Human Rights has already been active, thanks to a provision in the Ulster County Charter creating the Commission. They now have a larger mandate, including the enforcement of the Human Rights Protection Act of 2018.

The stated purpose of the Human Rights Protection Act is to grant the Human Rights Commission the authority to hold conferences, and mediate or conciliate the resolution of discrimination complaints. The Human Rights Protect Act also allows for the appointment of a Hearing Officer to hold hearings to decide the merits of discrimination complaints filed with the Commission.

If a decision of liability is made by the Hearing Officer, money damages payable to the complaining party may be assessed of not more than $20,000, along with non-monetary relief that the Hearing Officer believes is just and proper.

Unlike the relief allowed under Title VII of the Civil Rights Act of 1964, there are no awards of attorneys fees for the prevailing party.

It will be interesting to see how frequently complainants take advantage of this local process, rather than pursuing a claim in the Division of Human Rights, at the EEOC, or in State or Federal Court. Potential damage awards for discrimination are capped at $20,000, which is significantly less than a complainant may receive in any other forum, or in front of a jury, However, some complainants litigate for the principle of the matter, not seeking a financial windfall. The potentially quick resolution of difficult conflicts could be attractive to a litigant who does not want to commit time or money to a full-blown lawsuit.

There are open questions as to how the hearing will be run, including whether the rules of evidence apply, whether the trials are open to the public, whether either party would be entitled to pre-hearing discovery, including depositions and sharing of information. The Local Law delegates authority to the Hearing Officer to adopt procedures for running the hearing. Is this process going to provide an effective remedy for complainants? The Legislature appeared to have devoted substantial time and effort into this Local Law, with the goal of remedying discrimination on a local level. We will be reading up on further developments and will try to report back on how it's going.

Are you short-changing your interns?

Do you use interns and students in your for-profit business instead of hiring secretaries? If they are working for free, and the experience is not purely educational, you might be violating the law. If you are an intern or a student performing purely grunt work that a clerical employee would normally handle, you might have a legal entitlement to receive at least minimum wage for the time spent working as an intern.

Recently, the Wage and Hour Division of the U.S. Department of Labor (US DOL) issued new rules with the factors that should be weighed, when deciding if an unpaid intern is an intern only in name, but an employee in practice. The US DOL stresses that the main focus of the inquiry is to determine who the primary beneficiary is, of the individual's work. If the answer is "the employer," then the intern might be an employee. Factors that the US DOL will consider include:

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.

2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.

3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.

4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.

5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.

6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.

7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

These factors are flexible, and the US DOL stresses that no single factor is determinative. Instead, the US DOL looks at the relationship as a whole to determine whether there is an employer-employee relationship or whether the employment is more of a learning experience. Here is the link for more information: https://www.dol.gov/whd/regs/compliance/whdfs71.htm