Effective January 11, 2020, independent contractors in New York City are protected from discrimination or harassment in the workplace and can sue under the New York City Human Rights Law (New York State Human Rights Law already protects independent contractors). In addition, independent contractors in NYC now have a right to request and receive a reasonable accommodation related to their disability, religious observance, etc.

Because independent contractors are protected under the New York City Human Rights Law, companies in NYC with 15 or more employees are now required to provide annual sexual harassment prevention training to independent contractors (It was previously encouraged). Companies must modify their policies and training materials/procedures accordingly. Training under the NYC Human Rights Law must be completed by April 1, 2020.

In this “Me Too” era, it is logical that an employer’s reflexive reaction to receiving a complaint of harassment from a female employee is to immediately fire the alleged male harasser. However, while the employer may believe that firing the male employee will protect the employer from a lawsuit by the female employee, such impulsive action without a thorough unbiased investigation may expose the employer to a sex discrimination lawsuit filed by . . . the alleged male perpetrator. 

Read the full article by Mordy Yankovich, Esq. published in the Suffolk Lawyer here. 

According to the NYS Division of Human Rights, in legislative testimony provided earlier this month, sexual harassment complaints made to the Division have increased 62% since 2016.

Plus, this gigantic increase in complaints occurred before every employee in the State received training as to their rights when either being a victim of sexual harassment or being retaliated against for attempting to stop harassment.

Remember - every employer must train their employees before October 9, 2019 per Labor Law 201-g.

Failure to train is a misdemeanor and will be the kiss of death when trying to defend the company against a complaint of sex discrimination.

1. The Standard: Remind employees that the sexual harassment standard is subjective and it’s about whether conduct is unwelcomed, not whether the target of the conduct acquiesced to the conduct. Furthermore, employees need to be reminded of the breadth of what can constitute harassment. Beyond the traditional understanding of unwelcomed touching, even “harmless” small talk can be actionable if it’s sexist, sexual, homophobic, gender-stereotypical, and the like.
2. Policy Effectiveness: Employees need to know that regardless of the location where the party is held and irrespective if the party occurs after working hours, the Company’s sexual harassment and anti-discrimination policies remain in full force and effect. Incident to the policy being in effect, employees should receive a copy of the policy and be reminded of the adverse work consequences that can result if an employee is a perpetrator of harassment.
3. See Something / Say Something: Most importantly, employees should be empowered to be the solution to eliminate sexual harassment. This can be accomplished by reminding employees of the simple rule of if you see something, say something, which when implemented can effectively stop unwelcomed conduct before it crosses the line and becomes harassment.
4. Providing the Complaint Form: While avoiding harassment is the first goal, providing victims with resources must be a close number two. To accomplish this, HR should provide all employees with a copy of the complaint form and remind employees of the procedure undertaken when a complaint is received. By providing an avenue for employees to be heard and harassment to be addressed, employers can often avoid a lawsuit and at the least, have a good defense if the employee nonetheless sues.
5. False Complaints: While the act of setting forth the potential remedial measures faced by a harasser is a great dissuader of improper conduct, improper complaints should also be addressed by HR. However, HR must address false complaints with precision because everyone must be empowered to make legitimate complaints and not feel that they will be retaliated against. Remember, retaliation, which would reasonably discourage a worker from making or supporting a sexual harassment claim, is disallowed conduct. As such, HR should remind the team that an improper complaint is not one where harassment has not occurred, but, instead, where the complaint was made as a sword against a co-worker as opposed to a shield to protect against harassment. That being said, false complaints are a real thing and they must be avoided in order to root out harassment and make everyone safe at the workplace. As such, HR should suggest that employees avoid one-on-ones if they are afraid of improper complaints. By having a co-worker around, the employee will have a witness to corroborate their version of what transpired. Also, HR should remind everyone that a false complaint can result in criminal harassment charges under the Penal Law and/or a civil defamation lawsuit between co-employees. So, complaints are only to be made if they are brought in good faith.