Pautsch, Spognardi & Baiocchi Legal Group LLP
Monday Morning Minute
In This Issue
New York State's Sexual Harassment Training
DOL to Promulgate Joint Employment Rule
                  October 22, 2018


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New York State's recently enacted changes to its Human Rights Law which require employers to adopt a carefully proscribed sexual harassment policy and mandates training under that policy.  The states' enforcement agency has now issued  "guidance" on implementing this law and a model sexual harassment policy, complaint form, and training material. The law took effect on October 9, 2018. If you employ individuals in New York State it is imperative to be aware of the minimum requirements under this  law:

This  new law requires that every employer in the State, regardless of size, must adopt a policy that meets or exceeds the following minimum standards by October 9, 2018:
  • Prohibits sexual harassment consistent with guidance issued by the New York Department of Labor in consultation with the New York State Division of Human Rights;
  • Provides examples of prohibited conduct that would constitute unlawful sexual harassment;
  • Includes information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
  • Includes a complaint form;
  • Includes a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  • Informs employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  • Clearly states that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
  • Clearly states that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.
Employers must distribute a sexual harassment policy that meets or exceeds the minimum standards to employees in writing or electronically by October 9, 2018. To the extent the policy is made available electronically, employees must have the capability of printing a copy for their reference.

The new law also requires that employees be provided with a Complaint Form.  The complaint form does not need to be included with the sexual harassment policy, but employers should make clear to employees where it may be located. A word version of the model complaint form is available here.

The new law requires annual training.   Under this law, employees' first annual training must be completed by October 9, 2019. The law requires "interactive training," meaning that merely providing a video or reading materials to employees without live contact or the ability to provide feedback is not sufficient. However, a live trainer is not required.

There are, of course, additional details and nuances to this new law enacted in response to the #MeToo movement. Even if you are do not have employees based in New York you will want to review your sexual harassment policy and training protocol in this tough new legal environment occasioned by this movement. Please call any PSB attorney/consultant for advice on these issues
The joint employer doctrine provides that in certain circumstances two or more putative employers are held to be joint employers of a group of employees so that one putative employer can be equally legally responsible for the alleged labor and employment obligations of another putative employer.  Recently PSB Legal advised its readers that the National Labor Relations Board had proposed joint employer rulemaking to return to pre-Obama era legal standards and make it more difficult for one employer to be deemed liable for the infractions of another employer.  This is particularly important in the franchising, staffing, and interim employment industries.
This week the US Department of Labor announced that it would unveil its own joint employment rule as soon as December 2018.  The DOL's rule would cover wage and hour obligations and violations, presumably under a standard similar to that proposed by the NLRB.  Under this standard, two or more putative employers would be liable for wage and hour violations if they share or co-determine the essential terms and conditions of employment, and actually, rather than potentially, exercise the right to control those terms and conditions of employment.
Of course, the DOL has missed deadlines before, but given the speed of regulatory change so far, do not be surprised if we see a DOL proposed rule before the New Year.  PSB Legal will keep you advised of when the proposed DOL joint employer rule issues and the comment period.   In the meantime, contact any PSB attorney if you have joint employer issues you need help with, or if you wish to submit comments alone or as an association

PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


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