Employment law update: Harassment training, Labor Class protections

By Subhash Viswanathan and Craig L. Olivo, Esqs., Bomd, Schoeneck & King

Final statewide sexual harassment policy and training guidelines have finally been issued in New York, and the rules differ significantly in several important ways.

Plus, more civil service employees now have job protection.

Final sexual harassment guidance issued

The New York State Division of Human Rights has now issued its final model sexual harassment policy and training guidelines to help employers comply with the new sexual harassment law that went into effect in October.

One piece of good news: The division’s final training guidelines no longer require employers to train all employees by Jan. 1, 2019, as had been initially proposed. Instead, employers will have until Oct. 9, 2019, to complete the training for all employees.

A second piece of good news: The division’s final training guidelines no longer require new employees to complete the sexual harassment training within 30 days of starting. Instead, the guidelines simply encourage employers to train their new employees “as soon as possible.”

Online resource Read the final guidance at www.ny.gov/programs/combating-sexual-harassment-workplace.

In its final model sexual harassment policy, the division took into consideration comments submitted by Bond, Schoeneck & King. For example, it deleted the statement that a sexual harassment investigation “should be completed within 30 days.” Instead it requires only completing an investigation “as soon as possible.”

Employers were required to have a compliant sexual harassment policy in place by October 9, 2018.

Every policy must:

• Prohibit sexual harassment in a manner consistent with the guidance issued by the Division of Human Rights
• Provide examples of prohibited conduct
• Include information on federal and state harassment laws, remedies available to victims and a statement that local laws may apply
• Include a complaint form
• Include a procedure for timely and confidentially investigating complaints in a way that ensures due process for all parties
• Inform employees of external administrative and judicial remedies for addressing complaints
• Clearly state that sexual harassment is misconduct, and that sanctions will be enforced against harassers as well as supervisors and managers who knowingly allow harassment
• Clearly state that retaliation is unlawful.

Labor Class civil service workers get protection

Gov. Andrew Cuomo has signed legislation that amends Civil Service Law Section 75. Section 75 now extends hearing rights (i.e., the right to written disciplinary charges and a hearing before imposition of a reprimand, fine, suspension without pay, demotion or termination) to “Labor Class” employees after five years of continuous service.

That protection was previously afforded only to employees in the Non-Competitive Class after five years of continuous service and employees in the Competitive Class immediately upon permanent appointment. Until now, Labor Class employees had no such protections unless they were veterans or exempt volunteer firefighters. The amended law is now in effect.

If you are a public employer and have Labor Class employees with five years of continuous service, they are now protected under Section 75.

To the extent that existing collective bargaining agreements already confer pre-discipline hearing rights to Labor Class employees, this amendment will make little, if any, difference. However, if there are Labor Class employees who have not previously had a contractual entitlement to pre-discipline charges or a hearing, this is a major change.

If you have any Labor Class employees with fewer than five years of service who do not already have a contractual right under a collective bargaining agreement to pre-discipline charges and a hearing, this might be a good time to address any performance or conduct concerns through counseling before they are covered by the Section 75 amendments.

In addition, it may make sense to note the five-year anniversary date of all current and future Labor Class employees so that a decision regarding retention or termination can be made at the appropriate time before such employees achieve protected status.

Public employers should keep in mind that, even in the absence of a right to pre-discipline charges and a hearing, many collective bargaining agreements that cover Labor Class employees confer a post-discipline right to challenge discipline or discharge decisions through the grievance and arbitration process. Therefore, public employers should make sure they can defend their discipline or discharge decisions under the applicable provisions of the collective bargaining agreement, even when employees are not protected under Section 75.

Subhash Viswanathan is a member in Bond, Schoeneck & King’s Syracuse office. Craig L. Olivo is a member in the firm’s Garden City office.