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Upcoming Deadline for NY: Sexual Harassment Training 


June 16, 2020  |  Simone Francis


Training for Businesses With Employees in New York

Employers in New York are required not only to adopt and distribute written sexual harassment prevention policies, but also to provide training to all employees on an annual basis. For many businesses with employees who work in New York, sexual harassment prevention training must be scheduled and completed during the third or fourth quarter of 2020. As employers continue to navigate reduced resources, remote workforces, and new requirements targeted to minimize the transmission of COVID-19 among employees, customers, and other third parties, it may be tempting to resort to a “check the box” approach to sexual harassment training in 2020, coupled with a resolve to revisit this requirement when things “settle down” in 2021. However, to minimize the possibility that today’s interactions turn into lost productivity (or worse, discrimination charges or lawsuits) tomorrow, and increase the likelihood that the time devoted to completing training results in meaningful and positive changes in workplace culture, employers may wish to consider the following:

Will members of your workforce continue to work remotely?

If so, consider whether your policies and training materials emphasize anti-harassment and anti-discrimination policies when utilizing video platforms or other tools for remote interactions. Although the ability to work remotely is  beneficial for many individuals and businesses, the relatively sudden transition from physical to virtual workplaces may have meant that expectations concerning attire during virtual meetings, the activation (or non-activation) of video capabilities during meetings, and other aspects of these meetings that impact the experience of participants have developed on an ad hoc, rather than systematic basis across the organization. Although difference practices may be appropriate for different segments of a company, it is important that all users understand that the guidelines that apply to in person interactions are equally applicable to virtual meetings, and appreciate obvious and subtle ways in which a less than thoughtful use of technology can erode, rather than solidify, a healthy workplace culture.

While it may be self-evident to some, the U.S. Equal Employment Opportunity Commission (EEOC) on June 11, 2020 updated its Technical Assistance Questions and Answers related to COVID-19 to state that “Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration.” This is true, not just as a matter of federal law, but also as a matter of state and local law in New York and elsewhere. Accordingly, employers should consider utilizing annual training, or other programs, to remind employees of permissible and impermissible use of these tools. Training will also  foster and encourage a discussion about challenges or opportunities that may be unique to the organization based upon the nature of the platforms that are utilized, and how frequently these platforms are utilized. 

Does the training program incorporate a meaningful discussion about other forms of harassment and discrimination?

The law in New York “only” mandates sexual harassment prevention training on an annual basis. Still, recent events across the country have placed a spotlight on issues regarding racial equality and, in particular, concerning the treatment of African-Americans that merit attention in harassment prevention programs. In addition, the COVID-19 pandemic has created challenges for many groups of employees. For example, the EEOC has noted that “Managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about the coronavirus or its origins.”  

As more employees return to physical workplaces, individuals who are over 65, pregnant employees, and employees who are caregivers may face particular challenges. A training program that educates all employees, including managers and supervisors, about the manner in which laws prohibiting discrimination on the basis of age, disability, sex, and pregnancy apply to situations that are likely to arise is likely to engage employees far more effectively and constructively than a program that is devoid of content that addresses “real world” concerns of employees.

Are employees reminded about how to raise concerns and complaints about workplace issues?

Most employees may face increased anxiety and concern about a number of professional and personal matters. The reality of working remotely, or in a workplace with a constant emphasis on social distancing, might mean that employees believe that the opportunities for lodging concerns with supervisors, managers, or human resource personnel have been adversely impacted. Employees also may be concerned that the likelihood of a prompt and effective investigation has diminished or been eliminated altogether. Annual training provides an opportunity to remind employees about the existence of avenues for raising concerns, educate them about any changes in the manner that investigations may proceed, and ensure them of the continuing commitment to respond and take appropriate corrective measures regarding matters that are brought to the company’s attention, and to the prohibition against retaliation.  

Is the commitment of leadership communicated as part of the annual training program?

The COVID-19 pandemic has forced many businesses to separate some members of the workforce, and to make adjustments that have impacted individuals who remain employed. It is especially imperative that leadership communicates that it is as committed to ensuring a workplace that is free from unlawful sexual or other harassment as it is to implementing other measures to protect the health and safety of employees, customers and other third parties. Incorporating a video, email, or other message from leadership into the training curriculum can go a long way towards emphasizing the importance of the harassment prevention training material, particularly if leadership reinforces workplace culture expectations with a regular cycle of communications addressing other important topics affecting members of the workforce.

To learn more about implementing an effective harassment prevention training program, check out Preventing Harassment Training Workshop. Don’t have a training set in place yet? Request a demo of Emtrain’s Preventing Workplace Harassment online training course.

 


harassment preventionsexual harassment trainingworkplace harassment

Simone Francis

Simone effectively spearheads and collaborates with external and internal teams to identify and deliver solutions to clients concerning employment law issues.As a civil litigator with more than 20 years of experience, she has managed the defense of lawsuits involving a range of federal and local laws, including lawsuits alleging claims of discrimination, retaliation, and harassment. Simone also provides proactive and practical advice before litigation arises. She has developed customized, interactive training programs to educate supervisory and management personnel about their responsibilities for ensuring compliance with employment laws, and she routinely counsels businesses concerning a range of workplace issues, including managing internal investigations. Simone is a shareholder with Ogletree Deakins, where she divides her time between the firm’s offices in New York City and St. Thomas, Virgin Islands.



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