Articles By Chris Baiamonte

Sexual Harassment: Part Three. State Releases Model Policy

New York State has, at long last, released its final model sexual harassment policy and training materials. Back in April, Governor Cuomo signed into law a bill requiring all state employers to adopt what might be the most stringent mandatory anti-sexual harassment policies in the country and to provide sexual harassment prevention training to all of their employees on an annual basis.

The state first released a sample model policy and training on August 23rd for public comment and review. Then, on October 1st, the state finally released the official versions of the training materials and the model policy. These materials are only a sample, so employers are free to substitute their own materials so long as they meet or exceed the minimum requirements for the new policies. Those minimum requirements are also available on the DOL’s website. However, the state Department of Labor (DOL) has said that adopting the model policy will be sufficient to satisfy employers’ obligations under the new law.

One question that will arise when designing a prevention training, or even when implementing the DOL model training materials, is what the training should actually look and sound like. The DOL model training is available in one of two formats: a PDF document in the form of a script – apparently designed to be read by a presenter to a group of employees, or a power point presentation. It is important to remember that the training must be “interactive” to meet the minimum specifications of the law. Merely providing employees the power point presentation or the script is clearly insufficient.

The DOL has specified four ways in which employers can, relatively simply, make their training regimens comply with the interactive requirement:

  • having the training be presented in person and the presenter either asks questions of the employees or leaves time throughout the presentation for employees to ask questions;
  • for online versions of the training, enabling employees to have the option of asking questions and receiving an immediate response;
  • for online versions, forcing employees to periodically answer questions accurately to proceed with the training; or
  • at the conclusion of the materials requiring employees to submit a “feedback survey” discussing what they learned.

The DOL did not specify what a feedback survey might look like.

The date for complying with the new requirements for adopting a sexual harassment prevention policy is still October 9th, just eight days after the model policy was officially released. However, the state made two significant changes regarding the timeline for having all employees undergo the anti-sexual harassment training. The date for existing employees to undergo training has been shifted back from January 1 to October 9, 2019 and the 30-day deadline for new employees to undergo training has been scrapped in favor a requirement that they undergo training “as quickly as possible”. Presumably, these shifts were made in order to give businesses more flexibility in adopting a training program that works for their particular organization.

It will be important for employers to keep a close eye on the development of these rules for a couple reasons. Firstly, because any issues involving sexual misconduct are subject to a high degree of politicization and this certainly does not appear to be waning any time soon. Secondly, because New York’s new law is something of an aberration among the states; how it will play out in practice cannot be easily determined by looking at the experience of prior adopters. Thirdly, and most starkly, because the Governor said on a phone call with reporters this week that the state hadn’t “even concluded the regs on the law that we passed.” Indicating that further guidance from Albany about the requirements might be on the horizon.

https://www.ny.gov/combating-sexual-harassment-workplace/employers

 

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Sexual Harassment: Part Two. New Rules Explained

 

 

In the last post I explained that New York had passed some pretty significant rules aimed at curbing the problem of sexual harassment in the workplace. The paragraphs that follow give a summary of five of the most significant changes included in the reform package and hopefully provide some guidance for employers looking to stay in compliance with these important rules.

Expanded Liability

In the past, employers were only responsible for claims of sexual harassment from people directly in their employ. This is no longer the case. In order to expand protections to a larger segment of the working population, and in recognition of the way that work has shifted in this 21st century economy, this reform allows employers to be held accountable for the sexual harassment of independent contractors, subcontractors, vendors, and generally anyone performing services on the employer’s behalf. If a contractor or another covered individual is harassed, the employer can be held liable if they or their agents, knew or should have known about the harassment and failed to take appropriate corrective action. This reform went into effect the day the budget was signed on April 12, 2018.

Confidentiality Agreements

Prominent news pundit Bill O’Reilly famously paid a woman $34 million dollars to settle a sexual harassment claim and, more expensively, to keep quiet about it. Often a sexual harasser, or their employer, will attempt to limit the negative publicity or personal embarrassment associated with a sexual harassment settlement by including a non-disclosure or “confidentiality” agreement. This reform limits these agreements to instances when it is in “the plaintiff’s preference.” Policy makers argue that these agreements allow for too many repeat offenders and conceal the full extent of this problem from the public. The “plaintiff’s preference” exception presents a difficult question for litigants and judges to parse. Certainly Mr. O’Reilly’s victim’s preference must have been to keep quiet in exchange for a hefty payment. Couldn’t the same be said for all plaintiffs who voluntarily enter into these agreements? The answer is yet unclear. The statute does provide the guidance that this exception will only be allowed when the court determines that the plaintiff’s choice “is not a result of intimidation, coercion, retaliation, or threats” and that it will not result in an adverse “potential impact on the public.” Plaintiffs are afforded a seven-day window after signing any such agreement to revoke their acceptance. This part of the reform applies to all settlements entered into after July 11, 2018.

Mandatory Arbitration

One controversial aspect of the reforms is the prohibition on enforcement of mandatory arbitration provisions. Arbitration clauses are generally favored by policy makers on account of their effect on judicial efficiency. Employers also like them because they are often more cost effective and they avoid some of the publicity associated with litigation. However, the Legislature felt it was more important to ensure that victims could have their day in court, so the reform says that mandatory arbitration clauses will not be enforced after July 11, 2018, even if the agreement was entered into prior to that date. Employers should revisit any agreements in which these clauses were included to reassess the level of risk they are exposed to. This reform will probably be challenged on the grounds that it is preempted by the Federal Arbitration Act. Because federal laws reign supreme in our system of federalism, this could lead to this reform being declared unenforceable, meaning that employers’ arbitration clause are still binding. But this has not happened yet – as of today, this reform is still the law in the state of New York.

Sexual Harassment Policies & Employee Training

Employers are now obligated to adopt a written sexual harassment prevention policy to be distributed to all employees. The policy must:

  • prohibit sexual harassment and provide examples of prohibited conduct;
  • include information about federal and state sexual harassment laws and mention that there may be applicable local laws;
  • include a standard complaint form;
  • include a procedure for the timely and confidential investigation of complaints including due process for all parties;
  • inform employees of their rights to redress and available forums for adjudicating claims administratively and judicially, it is prudent, but not necessarily sufficient, to mention that employees can file a complaint with the Equal Employment Opportunity Commission and/or the New York Division of Human Rights (“DHR”);
  • state sexual harassment is misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and supervisors and/or management who allow such behavior to continue; and
  • state retaliation against individuals who complain of sexual harassment or who testify or assist in any proceedings is unlawful.

Employers are also required to provide all employees with sexual harassment prevention training on an annual basis. The training must include:

  • an explanation of sexual harassment;
  • examples of sexual harassment;
  • information concerning the federal and state laws concerning sexual harassment and remedies available to victims; and
  • information concerning employees’ rights of redress and forums for complaints.

The training is required to be interactive, but the statute does not specify in what way it needs to be interactive. Employers should scrupulously document the dates employees went through this training. These portions of the reform go into effect October 9, 2018. Before employers run out and hire an HR consultant to design them a training regimen, they should know that the law mandates the DHR produce a model prevention policy and training program, the adoption of which will be sufficient for compliance with the new rules. The DHS has yet to produce these materials, but they are also required to comply by October 9, 2018.

Conclusion

If employers don’t comply with these reforms they can face serious penalties. In addition to the obvious liability concerns, state contracts will not be awarded, and may even be revoked, from entities that fail to comply. There are numerous other specific requirements for public authorities, municipalities, and government agencies that are not discussed in this post, which come with their own sets of consequences. These reforms are necessary to address a serious issue in our society and although the compliance may seem like a headache at first glance, with diligence and a little guidance, these requirements can be a very manageable part of employers’ operations.

 

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Sexual Harassment: Part One. New Rules for New York State

Sexual harassment in the workplace is not a new phenomenon. It has risen to the forefront of public consciousness many times. At least since the infamous Clearance Thomas Supreme Court confirmation hearings in 1992, the general public has been well aware of the problem. Recent revelations about Hollywood producer Harvey Weinstein along with a cavalcade of high-profile allegations of workplace sexual misconduct which has resulted in the ouster of famous actors, top news broadcasters, wealthy executives, a federal Appellate Judge, and even a sitting United States senator, have generated renewed interest in concrete solutions to the problem. After all, the most troubling aspect of all this unfortunate news is that there are countless instances of workplace sexual harassment being perpetrated by less noteworthy offenders that go unreported and unpunished every day in workplaces across the country.

Not content with hand-wringing, the New York State Legislature included sweeping new sexual harassment prevention reforms into the State’s Budget, which were signed into law by the Governor on April 12, 2018. These laws and regulations affect all entities throughout the state, no matter the size, , so long as they employ at least one individual aside from the owner, excluding New York City, which is implementing its own unique slate of reforms. It is crucial that all New York employers familiarize themselves with these new rules and adjust their policies and practices accordingly.

Global Definition

The reforms adopt a standard definition of sexual harassment:

Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature if such conduct is made either explicitly or implicitly a term or condition of employment, or submission to or rejection of such conduct is used as the basis for employment decisions affecting an individual’s employment, or such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment, even if the complaining individual is not the intended target of sexual harassment.

Employers should use this definition in all company documents and training materials.

Major Policy Updates

The reforms are highlighted by five major changes that effect all employers:

1) expansion of liability for harassment that takes place on employers’ watch;

2) prohibition of confidentiality agreements in settlements of sexual harassment claims;

3) no more forced arbitration of sexual harassment claims;

4) mandatory adoption of written sexual harassment prevention policy; and

5) mandatory sexual harassment training for all employees.

These new policies all come with their own nuances and unique implementation features. Grappling with the details of each policy is important to ensure every employer is in compliance.  Next week, I will elaborate on what exactly each of these changes mean for employers and what some appropriate steps would be for them to make sure they do not run afoul of the new laws.

 

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NYS Energy Efficiency Goals

In 2013 the Governor rolled out the Reforming the Energy Vision (“REV”) program, which broadly set forth the state’s energy policies and goals. Two of the central goals laid out in the REV were to have 50 percent of the state’s electricity come from renewable sources and to reduce greenhouse gas emissions to 60 percent of 1990 levels. These are in addition to commitments the state made as a part of its membership in the 17 state United States Climate Alliance, a coalition of states determined to combat climate change. Currently only about 25 percent of the state’s electricity is derived from renewable sources.

Need for Energy Storage

One major obstacle to the widespread adoption of renewable energy resources have been their intermittent nature. This just means that they cannot produce electricity on demand. Taking two of the most widely known renewable sources for example: windmills do not generate electricity when the wind is not blowing and solar panels do not generate electricity when the sun is not shining. These facts put these energy sources at a disadvantage when compared to a coal or natural gas burning power plants which can produce more electricity whenever their operators decide to burn more fuel. Coupled with the inconsistent nature of electricity demand, (i.e. we tend to use a lot more electricity on hot summer days to power our air conditioners) much more widespread adoption of renewable energy sources cannot be achieved without overcoming this hurdle.

The Role of Energy Storage in New York

Enter large scale electricity storage. Currently the most common form of energy storage utilized in our electric grid is that of hydroelectric dams, which store gravitational potential energy in a reservoir, to be released whenever there is excess demand. However wind and solar electricity require a sophisticated battery to store the energy they produce. This burgeoning technology allows for excess electricity produced when the wind is blowing or the sun is shining to be saved for a time when there is more demand for electricity then is being produced. Famous technology company Tesla, who employs over 500 workers in their Western New York facility, is one of the world’s most prolific developers of these batteries, by some accounts installing half of the global stock since 2015. New York recognizes the need to invest in energy storage technology to achieve its renewable energy targets.

Goals

In 2017, New York became the fourth state to set a target for energy storage capacity. And in his 2018 State of the State address, the Governor publicly proclaimed a goal of 1.5 gigawatts of energy storage capacity by 2025. For context, that is enough to power about 450,000 homes. According to the state’s estimates, this would allow New Yorker to avoid over discharging a million metric tons of greenhouse gas emissions by 2025.

Incentivizing Battery Implementation

The New York State Energy Research and Development Authority (“NYSERDA”) has committed $260 million to energy storage investments. Last November Assembly Bill A06571 was enacted, creating the “Energy storage deployment program” with the goal of encouraging any economically feasible type of electricity storage that could potentially help New York reduce its greenhouse gas emissions. The implementation of this law includes things like using NYSERDA’s Green Bank to invest in this technology, incorporating storage into the approval criteria for renewable energy procurement requests, and reducing regulatory barriers to storage projects. One example of a regulatory barrier being removed was an order issued in April by the New York State Public Service Commission modifying the standardized interconnection requirements to allow energy storage units to connect with the grid more easily. To date, NYSERDA has provided funding for over 50 new storage systems in the state.

Roadmap

To further solidify its commitment to being a national leader in the electricity storage industry, the New York State Department of Public Service released a comprehensive Energy Storage Roadmap on June 21st. The intention of the Roadmap is to provide a “set of recommended near‐term policy, regulatory and programmatic actions to support energy storage deployment in New York State.” If the energy storage industry becomes as central to the world’s energy infrastructure as the state believes it will, New York may well be in good position to capitalize on this budding technology.

 

Picture: rev.ny.gov

 

The Land of Opportunity:

Independence Day, when we get together to commemorate the Declaration of Independence and to celebrate all things American. Our country has really come a long way since rebellious colonists threw off the shackles of monarchical rule in the 18th century. From a humble agrarian nation, it has grown to be the dominant military and economic superpower on the globe. Its cultural, political, and commercial influence is felt in every nation on earth.

Over the course of its rise to prominence, America has been known for, perhaps more than any of its many idiosyncrasies, its willingness to welcome foreign immigrants. The seeds of this ethos were firmly sown by the first Independence Day in 1776. Many of the first European settlers of North America came to escape poverty, religious persecution, and even political violence. These settlers brought with them a real sense of empathy for the plight of outsiders.

Thus, immigration became a defining feature of the American experience throughout its history. Immigrant labor was responsible for many of the great American achievements of the 19th century. Chinese immigrants laid the first intercontinental railroad, German and Italian natives built the longest suspension bridge in the world connecting Manhattan and Brooklyn for the first time, and the Irish dug the longest canal in the world in upstate New York enabling commerce between New York City and the Great Lakes.

Immigrants founded some of the greatest American companies: U.S. Steel, Levi-Straus, AT&T, DuPont, Proctor &Gamble, Yahoo!, Google . . .  These firms created technologies that transformed standards of living the world-over and provided millions of good jobs to American workers. The success of immigrants in America was so profound as to provide an impetus for the moniker ‘the Land of Opportunity’.

Successive waves of immigrants have come and assimilated into American society. Each one bringing with it new ideas, philosophies, religions, inventions, and traditions. All of these have shaped the nation into the one we know and celebrate today.

Of course, this is not to say that Americans have always and everywhere welcomed immigrants with open arms. Racism, xenophobia, protectionism, and plain old-fashioned intolerance have reared their ugly head in America, as they have everywhere in the world where people from different places, who speak different languages, or practice different faiths try to live and work together. But Americans have traditionally managed to move beyond our differences.

In many ways the success of the American experiment can be attributed to our willingness to welcome immigrants into our midst and to incorporate their perspectives into our national identity. Independence Day is a chance for us to reflect on what we love about America. Surely, our ability to incorporate individuals from all over the world into our society is one of our best features. Indeed, today America is home to 50 million immigrants, more than the next four nations combined. This Independence Day, reflect on how your ancestors came to live in ‘the Land of Opportunity’ and on how we can keep the opportunities abundant for all who seek them.

 

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Walk-it-off.

Walking

The banal perils of our sedentary work habits and lifestyles are well documented. Muscular diseases such as carpal tunnel syndrome linked to keyboard usage skyrocketed beginning in the 1980s. Back and neck problems associated with sitting have also been on the rise. Workers who spend all day at a desk or in the car have been show by medical studies to be at higher risk for heart disease, obesity, certain types of cancers, diabetes, even depression. Sitting has been called, perhaps hyperbolically, “the new smoking”, by Dr. James Levine, director of the Mayo Clinic-Arizona State University Obesity Solutions Initiative.

Sitting for an extended period is also negatively impacting our work performance. The British Medical Journal has concluded that prolonged time spent off our feet contributes to fatigue. This can be detrimental to productivity for workers in the knowledge economy and downright dangerous for those of us who drive or operate machinery. In a national survey conducted by the National Safety Council, among 2000 working adults, 76% of respondents reported feeling tired at work, 44% had trouble focusing, and 16% admitted to falling asleep unintentionally while driving!

There are countless remedies to the issues of workplace fatigue and health problems associated with prolonged seat exposure. Potential fixes to these common problems range from limiting screen time, changing our diets, transitioning to a standing desk, coordinating sleep schedules to more closely reflect our circadian rhythms, something called a Pomodoro Timer? Unfortunately, most of us just crack our knuckles and reach for that second cup of coffee when we feel stiff or lethargic.

But, there is one very simple way to combat these potential perils without making any sacrifices, spending any money, or going on some weird energy diet: walking.

A short walk gives the brain a chance to rest. As we think about the scenery or our destination our brains get a chance to decompress. We get a break from whatever task we were working on. Breaking up thinking about a topic can often lead to a fresh perspective on an issue. One we could miss if we refuse to come up for air. Research conducted at the University of Illinois has shown that even light aerobic exercise increases the number of blood vessels servicing the brain. This increase contributes to the speed of brain activity and facilitates problem solving. Walking has been shown to improve mood. It can give us a restored sense of balance when we are feeling frustrated or angry. Albert Einstein famously made a ritual of taking a brief walk around the neighborhood every afternoon. He reported having many of his ideas on these strolls.

In addition to the psychological benefits of walking, there are numerous physiological benefits. Walking increases heart rate, improves circulation, it facilitates deeper breathing, and stimulates muscle activity. Even a brief walk can positively impact cardiovascular health, balance, bone strength, and muscle health. Walking outside gives our body a chance to capture much needed vitamin D from sunlight (well, at least a few months a year in upstate NY). Being away from our work station also gives our eyes a chance to readjust, reducing strain that comes from reading small print or looking at screens. All this can be accomplished with a five or ten-minute walk down the block, or even around the office.

Sitting down all day reading off a screen and making repetitive hand motions is not great for our bodies or our minds. And remedies such as drinking caffeine, eating sugary snacks, or browsing social media can actually be making the problem worse. Taking a short break to get up and walk around for a few minutes provides numerous benefits both for our physical well-being and for our ability to do our jobs well.

 

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