11 Changes to New York State Sexual Harassment Laws

Yes, that does read correctly, 11 upcoming changes.  New York State legislators have passed multiple regulations related to sexual harassment in the workplace; training, policies, reporting, etc.  Many of these new regulations and rules are in the wake of the #MeToo movement and the many issues we have seen with sexual harassment in the workplace in a variety of industries, organizations and professions.  As leader’s we cannot tolerate harassment of any kind.  The new law(s) require employers to provide sexual-harassment training to all workers and much more.

The 11 changes to sexual harassment legislation (for now):

  1. October 9, 2018: As of now, and by October 9, 2018, employers in New York State must implement annual sexual-harassment training. The state is developing a model program, which can be used by employers.  Any training implemented must meet or exceed the minimal state requirements.  More to come on this area of change.

Training Requirements:

  1. “An explanation of sexual harassment and specific examples of inappropriate conduct.
  2. Detailed information concerning federal, state and local laws and the remedies available to victims of harassment.
  3. An explanation of employees’ external rights of redress and the available administrative and judicial forums for bringing complaints.”[i]

Sexual-Harassment Prevention Policy

The state is requiring organizations to adopt a sexual-harassment prevention policy and distribute to employees (yes now you must have a handbook of sorts), the expectations of the new requirements could vary from what your organization is currently using.  The state has strict requirements for organizations policies and procedures.  Be aware of expectations and implement accordingly.  The policy is required to include (for now):

  1. “A statement prohibiting sexual harassment and providing examples of what constitutes sexual harassment.
  2. Information about federal and state sexual-harassment laws and the remedies that are available to victims—and a statement that there may be additional local laws on the matter.
  3. A standard complaint form.
  4. Procedures for a timely and confidential investigation of complaints that ensures due process for all parties.
  5. An explanation of employees’ external rights of redress and the available administrative and judicial forums for bringing complaints.
  6. A statement that sexual harassment is a form of employee misconduct and that sanctions will be enforced against those who engage in sexual harassment and against supervisors who knowingly allow such behavior to continue.
  7. A statement that it is unlawful to retaliate against employees who report sexual harassment or who testify or assist in related proceedings.”[ii]

Senate Passes Comprehensive Strengthening of New York’s Sexual Harassment Laws

The Senate Bill

Guidance on Sexual Harassment for All Employers in New York State

These changes are significant across the state.  As leaders, we need to begin planning for training needs throughout the organization and updating policies and procedures.  The training should have a sign in and sign out sheet to ensure employees did attend and stayed to complete the training.  Recording the training to verify all were in attendance was a suggestion I recently heard at a training, but to also show new employees during the new hire orientation process.  Remember this is an annual training.  However, new hires need training as well.  Policies that are modified need to have signatures and witness signatures to verify receipt and understanding.  We are all learning about these changes together.  We need to be proactive and seek guidance, as these laws continue to change and evolve.  New York City has laws above and beyond state requirements (more to be written on this).  Continue to monitor for new updates coming out of Albany.  There are many legal seminars throughout the state on this topic, which will be helpful to organizations of all sizes.  More to be written on these new requirements in upcoming articles!

 

 

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-sexual-harassment-training.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-sexual-harassment-training.aspx

5 Definitions for Alternative Dispute Resolution

Alternative dispute resolution (ADR), is an umbrella term used for methods to resolve disputes internal to the organization and outside the court system.  Many organizations use one or all of the ADR techniques, with the techniques continuing to grow in popularity.  Union and nonunion organizations use ADR techniques to resolve disputes, large and small.  Dispute resolution is a necessity for any organization, resolution can impact organizational culture, engagement and turnover rates.  The techniques defined below can be used to resolve disputes outside of the workforce as well, we have mediation services in our communities that assist families, neighbors, etc. resolve disputes through proactive channels of communication.

The 5 Definitions of Alternative Dispute Resolution:

  1. “Arbitration: an ad judicatory process in which a neutral third party imposes a final, binding decision to resolve a dispute.
  2. Mediation: an informal process in which a neutral third party assists opposing parties to reach a voluntary, negotiated, non-binding resolution of a dispute; may be conducted internally or externally.
  3. Ombudsman: a neutral third party who is designated to confidentially investigate and propose settlement of complaints brought by employees; may be an insider or outsider.
  4. Open-door policy: a process in which employees are encouraged to discuss problems with their immediate supervisors or others in the chain of command.
  5. Peer review an internal process in which a panel of employees works together to resolve employment complaints.”[i]

Arbitrators, mediators and ombudsman are trained in dispute resolution techniques.  They know how to fact-find, draft agreements and issues decisions.  An open-door policy is an easy way to resolve disputes.  We listen to the issue (not listen to respond) and address any concerns.  Peer review is another process that can be implemented, this also needs to be managed proactively to ensure it’s legal.   All of the ADR techniques work, the effectiveness will vary by organization.  Select a process that works for your organization and be consistent with dispute resolution.

New York State Paid Family Leave Update:

Recent changes to NYS PFL confirmed that employers do not need to cap the weekly employee payroll deduction for PFL at .126% of the NYS Average Weekly Wage ($1.65 per week in 2018).  Employers can deduct .126% of an employee’s weekly wage until the employee hits the annual cap of $85.56, which is .126% of the annualized weekly wage.  This is a significant change, which better positions employers to collect the full PFL premium from each employee.

Work with your payroll companies and NYS PFL providers to ensure the calculations are accurate and deducted under current legislation.  If you are confused, seek guidance.  Like many laws, we continue to see changes to NYS Paid Family Leave. 

 

– Matthew Burr, HR Consultant

[i] American Arbitration Association, U.S. EEOC & SHRM Magazine

9 Statistics on 2017 EEOC Claims

On January 25, 2018 the U.S. Equal Employment Opportunity Commission (EEOC) announced that a decreased number (from 2016) of 84,254 workplace discrimination charges were filed with the federal agency during the fiscal year of 2017.  These charges, lawsuits and settlements, secured $398 million for victims in private sector, state and local government workplaces, costing organizations and tax payers a significant amount of money.  “Retaliation, which topped the list, occurs when employers treat some people less favorably than others…that includes job applicants, employees, and former employees…the 41,097 retaliation charges the EEOC received made up nearly 49 percent of the complaints.”[i]

9 statistics on 2017 EEOC claims:

  1. “Race: 28,528 charges (33.9 percent).
  2. Disability: 26,838 charges (31.9 percent).
  3. Sex: 25,605 charges (30.4 percent).
  4. Age: 18,376 charges (21.8 percent).
  5. National origin: 8,299 charges (9.8 percent).
  6. Religion: 3,436 charges (4.1 percent).
  7. Color: 3,240 charges (3.8 percent).
  8. Equal Pay Act: 996 charges (1.2 percent).
  9. Genetic information: 206 charges (.2 percent).

*The percentages add up to more than 100 because some charges allege multiple bases.”[ii]

The EEOC also received 6,696 sexual harassment charges and obtained $46.3 million in monetary relief for the victims of these claims.  There are two types of sexual harassment claims included; quid pro quo (this for that) and creating a hostile work environment (a variety of issues in the workplace).

Overall, the number of EEOC filings decreased, as compared to 2016 data.  However, retaliation claims are on the rise and have been on the rise for many years.  As leaders, we need to understand that an employee filing a charge with the EEOC or the Department of Human Rights (NYS legislation), is as easy as going to a website and working through the steps, as outlined on the respected site.  The EEOC, in the past, has tweeted steps to submit a claim, through Twitter.  These claims are real, do not assume “this can never happen to our organization.”  It can, and it does happen to organizations of any size, in any location.  A culture of respect and zero-tolerance for discrimination and retaliation, while following up on allegations, will set the tone for reducing the likelihood of claims against our organizations.

The Department of Human Rights has not released statistics for 2017 claims.  Employees can file claims with the EEOC and/or Department of Human Rights, if there are issues in the workplace. Use the link below to learn more about what to do in the case of receiving an EEOC charge of discrimination, and as always, if you are uncertain about your compliance or HR practices, seek the assistance of a consultant and/or legal team for guidance.

What should I do if I receive an EEOC charge of discrimination?

[i] https://www.shrm.org/ResourcesAndTools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/Pages/EEOC-Retaliation-Makes-Up-Almost-Half-of-Discrimination-Charges.aspx

[ii] https://www.eeoc.gov/eeoc/newsroom/release/1-25-18.cfm

 

4 Need to Knows on Inclement Weather and W-2 Scams Updates

The weather, throughout the country during this time of year can be extreme, causing delays, and at times we will need to shut down operations because of inclement and unpredictable weather.  As most of us know, a few weeks ago the extreme cold was a perfect example of weather causing operations to close.  As leaders, we need ensure safety of our workforce and to fully understand the laws and regulations related to pay for both exempt and nonexempt workers, if the organization closes due to inclement weather.  

Below are 4 need to knows on inclement weather and pay:

  1. Exempt Employees: Under the Fair Labor Standards Act, exempt employees almost always must be paid during inclement weather and/or a natural disaster.  The Department of Labor has a list of instances in which an employer can dock an exempt employees pay, inclement weather and/or a natural disaster does not fall into pay docking.  The exempt employee must be paid for the entire day.  If the organization plans to close for an entire week due to weather or a disaster, at this time, an organization would not have to pay an exempt employee.
  2. Nonexempt Employees: Under the FLSA (federal law), employers are only required to pay hourly, nonexempt employees hours worked.  Certain states have report-in or call-in pay laws that can require employers to pay nonexempt employees if they show up to work as scheduled.
  3. New York State Nonexempt Laws: The New York Labor Law “Call-In Pay” provisions state, “that an employee who, by request or permission, reports to work on any day shall be paid at least the lesser of: a) four hours at the basic minimum wage rate; or (b) the number of hours in the employee’s “regularly scheduled shift” at the basic minimum hourly rate.”[i]  In inclement weather or a natural disaster, call-in pay will be due regardless of whether or not an employee was called in or showed up for work during their regularly scheduled shift and is informed  at that time, the organization is closed.

NYS DOL Minimum Wage Order Language

  1. Federal versus State Laws: In this situation, state law will supersede the federal laws related to inclement weather and nonexempt employee pay.  State laws on this subject will vary, this is just an example from New York State.  Be aware of legal requirements during this season of unpredictable weather.  If a nonexempt employee is working from home (emails, phone calls, etc.) during the inclement weather, this would also constitute payment for hours worked.  

Communication is critical in situations involving inclement weather or natural disasters.  We need to be proactive with our communication, while ensuring our employees know about closures prior to showing up for work.  Communication should be the normal communication process in the organization (phone, email, text, etc.)

W-2 Scams:

I wrote about this topic last year as well.  Cyber thieves continue to file fake tax returns and claim refunds.  Recently the thieves have posed as company executives and have obtained protected information from organizations about the employees.

Below are links to helpful resources regarding these scams:

Form W-2/SSN Data Theft: Information for Businesses and Payroll Service Providers

How to Handle W-2 Phishing Scams

Report Phishing and Online Scams

[i] http://www.hodgsonruss.com/newsroom-publications-inclement-weather.html

 

 

2018 OSHA 300-A Posting Timeline

As many of us know; all employers are required to keep OSHA Form 300 (Injury and Illness Log) records throughout the year and must post Form 300A.  This annual summary of job-related illness and injuries, must be posted in the workplace by February 1, 2018.  The OSHA 300-A from should be posted in common areas, comparable to locations of labor and employment posters, workers compensation certification and paid family leave certification (break rooms, meeting rooms, kitchens, etc.).  The summary must include the total number of job-related injuries and illnesses that occurred in 2017.

Areas to remember:

  1. Posting Period: The posting period starts on February 1, 2018 and ends on April 30, 2018.
  2. What is a Form 300A: The form reports a business’s total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on the OSHA Form 300.  The information posted should also include the number of employees and the hours they worked for the year.  No recordable illnesses or injuries?    However, an organization must still post the form, with zeroes on the appropriate lines.
  3. Helpful Links:

OSHA Injury and Illness Recordkeeping and Reporting Requirements

Injury & Illness Recordkeeping Forms

OSHA Recordkeeping Advisor

Partially Exempt Industries List

“The Trump administration continues to look for ways to lessen the regulatory burden on employers. As a result, the Occupational Safety and Health Administration’s (OSHA) electronic recordkeeping regulation continues to be whittled down. OSHA’s latest Regulatory Agenda sets out new changes to the already beleaguered rule. Specifically, OSHA intends to propose to amend the Electronic Recordkeeping rule to eliminate the requirement that establishments with 250 or more employees submit OSHA 300 Logs and 301 forms. Instead, two types of establishments would continue to submit 300A summary forms: (1) establishments of 250 or more employees; and (2) establishments with between 20 and 249 employees in the high-hazard industries listed in Appendix A to the regulation. Employers with establishments meeting these criteria electronically submitted OSHA 300A summaries with 2016 data on or before December 31, 2017 and will submit their calendar year 2017 summaries by July 1, 2018. Beginning in 2019, and every year thereafter, covered establishments must submit the information by March 2.”[i]

As we see with many of the HR laws and regulations, OSHA is continuing to evolve and change under the new administration.  Ensure that you are monitoring for recent or upcoming changes and posting as required under the federal and state law.  Public sector rules will vary as well.  If you have questions, seek guidance.  Safety rules and regulations can be complex, just as HR laws and regulations are.

[i] https://ogletree.com/shared-content/content/blog/2018/january/osha-anticipates-more-changes-to-the-electronic-recordkeeping-rule

 

 

5 Thoughts on Sexual Harassment Investigations

Recently, we have seen a significant number of workplace sexual harassment allegations and legal claims in the media.  Many of these allegations have been ignored for years, if not decades.  As organizational leaders, we have an obligation to take harassment claims of any nature seriously and address these claims proactively.  Investigating sexual harassment allegations, bullying, retaliation, etc. and addressing these issues is never easy, but it is necessary.

Below is a summary of my 5 thoughts on sexual harassment investigations:

  1. Take it Seriously: As recent news has shown us that ignoring a problem and/or covering it up isn’t a solution to any employee relations issues or sexual harassment claim. Employees should feel comfortable discussing these allegations with a supervisor, manager, business owner or the human resources department and have the confidence that the system will not fail them.  Make time to listen and address any concerns that are brought to your attention.  The worst thing we can do is ignore it or that make statements, that we are too busy to listen and proactively deal with the situation.
  2. Ensure Confidentiality: Organizations must protect the confidentiality of employee claims to the best of its ability.  Within protecting confidentiality, we must also conduct a prompt and proactive investigation.  Explain to the party putting forth the allegations and all individuals involved in the investigation process, that all information gathered will remain confidential, to the extent possible for an effective investigation.  However, organizations cannot guarantee absolute confidentiality to any party involved in the investigation.
  3. Provide Interim Protection: “Separating the alleged victim from the accused may be necessary to guard against continued harassment or retaliation. Actions such as a schedule change, transfer or leave of absence may be necessary; however, complaints should not be involuntarily transferred or burdened.  These types of actions could appear to be retaliatory and result in a retaliation claim.  The employer and the accuser must work together to arrive at an amenable solution.”[i]  Reinforce policies and communicate proactively with the party that has put forth the allegations.
  4. The Investigator: The appropriate investigator is necessary to ensure credibility of the investigation. Investigators must have the ability to investigate objectively without bias and remain neutral.  The investigator should have no stakes in the outcome.  There should be no personal relationships with either party involved in the situation.  Investigators need investigation skills that include; previous investigatory experience and working knowledge of labor and employment laws.  They must be able to build rapport with the parties involved, have attention to detail (notes, questions, fact-finding and summarizing) and the right temperament to conduct the interviews.  Investigating allegations is not easy.  Patience, efficiency and fluid communication is necessary to be effective.
  5. Investigation Closure: Ensure that thorough notes are documented throughout the process, interviews are closed out and the investigation ends. Loop closing communication is necessary to ensure investigations are effective and impactful.  Leaving the alleging party with no closure can lead to additional issues.  This does not mean communicating discipline, training and/or termination impacts.

Throughout my career, I have conducted many workplace investigations, including; harassment, bullying, retaliation, workplace violence, threats and sexual harassment.  Investigations are never easy, but they are necessary.  Doing the right thing isn’t always easy, but it is necessary.  If you are unsure on investigating or recognize that an internal investigation will not be effective and impactful, bring in a third party to assist the organization throughout the process and seek the necessary guidance to protect your workforce and your organization.

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/howtoconductaninvestigation.aspx