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PeopleWork 05 - Attorney Kevin Wicka on the New York State Sexual Harassment Prevention Law

Posted by Complete Payroll | Sep 5, 2018 7:00:00 AM

PeopleWork 05 - Kevin Wicka from The Tarantino Law Firm - Complete Payroll

On this episode of PeopleWork, we reconnect with labor law and employment attorney Kevin Wicka of the Tarantino Law Firm in Buffalo, N.Y. Kevin joins us to bring us up to speed on the recent updates to the New York State Sexual Harassment Prevention Law. The State recently released draft policy templates ahead of the stated October 9th deadline, along with other drafts for training requirements and employee complaint filing procedures. Kevin is a tremendous resource and will help you make sense of the law, what we know, what we're still waiting on and what employers should be prepared for.

Watch the video or read the full transcript below:

 

Transcript

CJ: Hey, everyone, it's CJ Maurer here with complete payroll. And welcome to another episode of PeopleWork, where we talk to leading professionals in the field of human capital management, payroll, HR, time and attendance, labor law, insurance benefits, whatever. If your job involves managing people and taking care of a workforce, we wanna talk to you.

Today we are joined by a return guest, Kevin Wicka, who is an attorney at the Tarantino Law Firm in Buffalo, New York. Kevin specializes in employment and labor law matters, and has been an excellent resource for us with a lot of the content that we're putting out there. And today I'm really excited that he's here to talk about the new New York state sexual harassment prevention law, which a lot of people are really focused on and wanna have answers to their questions.

So, first of all, Kevin, thank you so much for being here.

Kevin: Thank you for having me, CJ. Glad to be back.

Yeah. So, we actually first connected, it was about five months ago. And our conversation was, really, mostly about how can employers in New York state work to just prevent harassment in the workplace, in the beginning. And I thought that was a really good conversation, but we didn't really get into the details of this new sexual harassment prevention law because there wasn't a lot of details that had been rolled out. So, today we're gonna get into that, and we're gonna get into some of the updates that have come down the pike in the more recent days.

But, before we do that, why don't you just give everybody listening, Kevin, if you don't mind, a general overview of what this law is and what employers should know about it.

Sure, CJ. Well, this law, this was something that was passed in April. It, actually, was part of New York state's budget. And the interesting thing about it, is that it is really tailored specifically towards sexual harassment. So, it doesn't address other forms of unlawful discrimination, whether it's race, disability, age, this is focused specifically on sexually harassment. And there are specific policies that have been put in place. And what we have been waiting for, really, since that went into effect in April, is for New York state to issue their model policy and model training.

People were getting quite anxious, to tell you the truth, because there was originally believed to be a deadline of October ninth, whereby employers would have to have their employees trained, and would have to have these new policies in place. And we have a little bit more clarity now that New York state has published for comments. So, these are draft only materials, at this point. It's on the New York state website.

They've published a model policy, which is seven pages, single spaced, and they've published a model training material. They've published a draft FAQ section to answer questions, and they've put a date in by September 12th of ... Just a two weeks away for people to comment. And one of the key things that looks to be different, is that the training deadline appears from the draft materials, that that will be January 1, 2019.

But, it looks like the employers will still be required, by October ninth, to have a new sexual harassment policy in place.

Editor's Note: New York State has issued a new law that requires all employers to adopt and distribute a sexual harassment prevention policy and provide interactive sexual harassment prevention training to all employees. The law goes into effect October 9, 2018. The state will be developing a model policy and a model training, so employers will not need to create their own. Click here to be notified when the state releases this model policy to help ensure your compliance.


Okay, okay. So, let's ... Let me make sure I'm understanding this. First of all, the two main components of the law are employers need to adopt a company policy about harassment prevention, you know, where they stand on sexual harassment prevention. They don't tolerate it, things like that.

Correct.

And number two is, they have to regularly train their employees on sexual harassment prevention, correct?

That's correct. And there's even a number three, really. Which is that, now they have a model complaint form that should be attached to the policy and that can be used for employees to complete. They're not required to do that, but it is encouraged. And if, in fact, an employer receives a verbal complaint, and the employee does not want to complete the written form, the employer is required to complete the form and should use that to start their investigation. That's a big part of the policy, as well. That there is mandatory investigation that must occur within 30 days of receiving a complaint.

Interesting. Okay. So, it's company needs to establish and disseminate a policy, company needs to enact a training program and train it's employees on sexual harassment prevention every single year, and then there needs to be these methods for receiving and investigating complaints. So, those are really the three parts. And, to make sure I'm understanding you correctly, the deadline for employers implementing and disseminating a policy on sexual harassment is October ninth.

That's correct, as it stands right now. Unless they change that, because the September 12th deadline is for comment on these draft policies. So, I don't know how much time they're going to take to review those comments and when they issue the final policies, or how many changes they make to these drafts based on the comments that they receive. So, it's really a tight turn around, right now, even if you were to just look at the time period between September 12th and October ninth.

Got it. Okay, so that's what ... So, essentially what these model draft policy ... So, New York state, to make sure I'm understanding this correctly, New York state has offered a draft of, hey this is what a good policy would look like. And if you would adopt this, or something similar, you will be in compliance. But, instead of releasing it as the final version, it's a draft and they're allowing employers to comment. This is what the comment period is between now and September 12th, and then sometime between September 12th and hopefully the current August ninth deadline, they're going to release the final policy template to provide guidance for employers?

Right, the October ninth deadline, yes.

Oh, did I say ...

You said August, but October, just to make sure.

October, yeah.

So, yes. The one thing I do wanna just clarify a little bit off of what you said, was New York state is not saying you have to use their policy. You said something similar. It has to be at least provide the same or more protection or information that what is in the New York state one.

Got it.

So, it's really going to be a challenge. There might be certain industries where some of the things in the model policies may not be as applicable, so an employer may wanna tweak it a little bit. But, this model policy is quite a bit different than what we would normally see as a traditional anti-harassment policy in the past. Even for an employer that was really trying to keep up on what a good policy would look like.

Okay. So, that's helpful, thank you. I think we've got a pretty good understanding on the policy component. What about the training aspect? What's the deadline? What are employers need to know in that regard in order to be compliant?

Well, in the training aspect, it looks like based upon the draft FAQ section and the draft training manual, there's a 24 page draft training manual that's available on the website. And according to those two documents ...

The New York state website?

New York state website, thank you. According to those two documents, January first 2019 is the deadline whereby all existing employees must be trained. But, that's not where it ends. There has to be ... Any time a new employee is brought on board, you have to train them within 30 days, and then your existing force will have to have an annual training as well.

So, there are some specific things they're looking for in the training. And the biggest thing that they're looking for is they want it to be interactive. So, they want employees to have the ability to ask questions. So, in the past, sometimes employers might use a web based training, sometimes they might use a live trainer. They're really recommending a combination of both of those. And that may be impractical, especially based on your workforce, to be able to have web based training as well. But, to have a live trainer as well that could answer some questions.

It's important to, not only talk about harassment being unlawful, but to give specific examples. So, they like to use, in the model training, some scenarios that are laid out and ask questions of the employees so that they can give their opinion on whether they thing something is harassment or is not.

Whether or not the conduct is appropriate or not. So, the big change that they're trying to do is to have it to be interactive. And that's going to be the key, is finding out what exactly does that mean.

Kevin, do we know yet how New York state is going to enforce this? Are there going to be audits? Is there gonna be some type of report? Or, has that not been announced yet?

They have not announced that yet. So, if you look at it, based on how they've done other things, my guess is it's probably gonna be some form of an audit. So, if there is a complaint, they may go in and they will wanna see that you are trainings are being done, they'll wanna see your policy, your complaint form. So, there are some things that employers should be doing to make sure that their documenting their efforts.

So, for example, there's nothing in the model policy that requires the employer to have their employees sign an acknowledgement. However, I would recommend that based on the fact that you're going to have to show that you have trained your employees. So, I would think recordkeeping, here, is going to be very important to show that the employer is in compliance.

That's a good point. Okay, so this is a policy. New York state has released a lot of policies on a lot of different employment related topics over the years, how is this policy different than other policies employers may be familiar with?

Well, it's different in a few ways. There's a lot of ways, actually, but I'll try to highlight a couple of the big ones. So, one of the big ones is it applies to non-employees. And this is a real tricky issue for employers. So, traditionally, under the New York state's human rights law, under federal title seven, those two are the statutes that prohibit gender discrimination and sexual harassment. An employer is only liable for conduct that occurs toward their employees.

This policy talks about non-employees being covered. So, if you have independent contractors, if you have interns, if you have vendors that are in your office working, they could potentially bring complaints against the employer. And it's unclear how that's going to fit within the structure of the existing laws as they exist. So, it's hard to reconcile that right now, so we're gonna have to wait and see how that comes about. If there's going to be an amendment to the New York state human rights law.

So, for example, if you have an IT support person that is not your employee that's coming into the office, and one of your employees is harassing that person, sexually harassing that person, this policy talks about non-employees being able to make complaints and having coverage. So, that's one big area that we're not sure how that's going to apply.

Another big area is that unlike what we've seen in most policies, the model policy talks about an employee ... It educates them, rather, on how to go about filing a complaint legally. So, not only with the employer, but how to file a complaint with the New York state Division of Human Rights. How to file a complaint with the Federal Equal Employment Opportunity Commission or the New York state Supreme Court. So, you can give ... You're giving the employees, rather, information on how to legally enforce their rights, which is quite a bit different. And it talks about statues of limitation, and how those procedures will work and what can be done. And it even goes as far as to encourage employees to contact law enforcement if there are situations of physical contact.

Wow.

So, there are a lot of significant changes, but those are some of the big ones, in particular, that we've seen.

Yeah, that's really interesting. Okay, Kevin, based on what we know now about the law, the draft model policies and the looming deadlines, what advice might you have for employers right now?

Well, the first thing that they're gonna have to do is take a look at their handbook. Because, on other big changes that most handbooks have policies that prohibit other types of discrimination and harassment, as well. So, the question for the employer in the short term is, are you going to make all of your policies similar to this one, or leave this one as a standalone sexual harassment? Maybe an attachment to the handbook. You can have it digitally available to employees, but they have to be able to have access to that.

So, the first thing is you're gonna have to do from an employers stand point, is to get this policy in place and really have an understanding of what it means. And I would recommend training your management staff separately than the employees so that the management staff has an understanding of how to handle this from their end. Because it's very different as far as what role the manager will have in there, versus a rank and file employee.

Yeah. Yeah. That makes a lot of sense. Lot of things start with the employee handbook.

Absolutely.

A lot of things. Kind of like an all roads lead to Oz. It's funny how that happens sometimes. Okay, so I don't know if you've already answered this question, but if you were in a consultative mode right now, how might you advise employers or a client ... We'll put it this way, let's say a client comes to you with a question, Kevin what do I do now? How might you help them?

Well, I think they can start to get ready, but I would hold off, if you can. And I know we're running up tight against the deadline. But, the concern would be is if someone takes this draft policy and goes ahead and issues it before New York state has issued the final policy, there could be some significant changes. Because people are raising some questions, some of the ones that we've just talked about, as to how this is going to be implemented. And that's what the comment period is for.

So, I would be ready and start to get things in order, so that there can be a quick turn around. But, I would advise my clients to just, if we can, wait a little longer before issuing that policy. The trainings, obviously, we'll have a little bit more time. But, we're going to have to figure out what is going to be the most effective way to train employees that is realistic, practical and can keep in compliance with the law.

Great. Is there anything that we did not cover today, Kevin, that you would like to talk about or share with anybody who might be watching this, especially employers?

Well, there's a lot to digest here, so I'm certainly not going to go and say that, "Oh, we've covered everything." This is ... There's a lot here, and we're trying to really sift through it.

Good point.

This, literally, just came out last week. So, everyone is trying to digest this and questions are starting to be raised. So, there's a lot here, and it is going to be challenging. No question about it. To make sure that everyone is in compliance. I certainly understand the motivation for it. If anyone watches the news, there's been a lot of this over the last 12 months, but I think that it's one of these things where maybe the best advice is to stay tuned because there's going to be a lot more to come down the pipe, here, very quickly.

Kevin, that's really awesome. Before we break, I have a question for you. Really, really important, tonight is the last pre-season game for the Buffalo Bills, and I see a football helmet on the top of your hutch there. I'm guessing that's a Buffalo Bills helmet. My question for you is, who do you think starts as quarterback, I believe it's next Sunday, for week one of the regular season and why?

I'm gonna go with Nathan Peterman. I think Peterman, at this point in time, has put his best foot forward in the audition. I think Josh Allen is still learning and I have hopes for him in the future, but I'm not sure he's ready yet. I'm not sure that they have the pieces around him yet. And might be time for Peterman to hold down the for a little bit, until Allen's ready to take the helm.

Yeah, that offensive line looks a little bit suspect and I believe I heard on the radio that Peterman had, like, and 80% completion percentage in the pre-season. Certainly can not argue with that.

No, I think he's done what he has to do to win the ... Did what he had to do to win the job, at this point. I think that last game, that we had last week with Allen and the offensive line troubles, maybe hit the brakes a little bit on everyone's excitement for Josh Allen to take over and be the guy. Maybe, but I don't know if he's quite ready yet.

Yeah, we'll see. Well, thanks for indulging me and the rest of the Western New Yorkers who are watching right now. For those of you watching this, below ... Lower down on this page you will find a link to Kevin's law firms website, the Tarantino Law firm, as well as Kevin's personal contact information if you wanna reach out to him about anything.

Kevin, once again, thank you so much for being a tremendous resource to all of us here at Complete Payroll, and everybody else watching, we really appreciate it.

My pleasure, CJ. I'm sure we'll be talking again soon about this.

I sure hope so. Thanks.

Thanks.

 

Helpful Links

New York State has issued a new law that requires all employers to adopt and distribute a sexual harassment prevention policy and provide interactive sexual harassment prevention training to all employees. The law goes into effect October 9, 2018. The state will be developing a model policy and a model training, so employers will not need to create their own. Click here to be notified when the state releases this model policy to help ensure your compliance.

Topics: PeopleWork

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