Legal Analysts

Showing posts with label sexual harassment. Show all posts
Showing posts with label sexual harassment. Show all posts

Wednesday, June 19, 2019

Breaking News - Workplace Anti-Discrimination Laws Updated in NYS

Attention Employers and HR!!!!

A08421 has passed both houses and is headed to the Governor to change discrimination laws in NYS forever.

The legislation does the following:

  • Changes the severe or pervasive standard of harassment to a very low standard of more than petty slights or trivial inconveniences;
  • Eliminates part of the Faragher/Ellerth affirmative defense to a lawsuit by making the fact that the employee did not make a complaint about the harassment to the employer not determinative as to liability;
  • Extends protection for non-employees in the workplace to all protected classes;
  • Allows courts to award attorney's fees on all claims of employment discrimination, and allow for punitive damages in employment discrimination cases against private employers;
  • Provide that the Human Rights Law is to be construed liberally for remedial purposes, regardless of how federal laws have been construed;
  • Prohibit mandatory arbitration clauses for discrimination claims;
  • Prohibit non-disclosure agreements in any settlement for a claim of discrimination, unless it's the complainant's preference;
  • Provide that any term or condition in a non-disclosure agreement is void if it prohibits the complainant from initiating or participating in an agency investigation or disclosing facts necessary to receive public benefits;
  • Require that employees be notified that non-disclosure agreements in employment contracts cannot prevent them from talking to the police, the Equal Employment Opportunity Commission (EEOC), the State Division of Human Rights or a similar local entity, or a lawyer;
  • Extend the authority of the Attorney General to prosecute certain civil and criminal cases of discrimination against all protected classes;
  • Require the Department of Labor and the Division of Human Rights to evaluate the impact of the model sexual harassment prevention policy every four years and update the policy as needed;
  • Require any term or condition in a non-disclosure agreement be provided in writing to all parties, in plain English and the primary language of the complainant;
  • Require the commissioner of the Labor Department to prepare templates of the model policy in languages other than English;
  • Require every employer to provide employees with their sexual harassment policy in English or their primary language when they are hired and during training; and
  • Extend the statute of limitations to file a sexual harassment complaint with the Division of Human Rights from one year to three years.

Visit to keep your company safe from discrimination claims while maintaining a safe workplace for all.

Friday, May 31, 2019

Sexual Harassment Complaints up 62% since 2016

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.

Wednesday, February 27, 2019

Employers - Watch out for Sexual Harassment Training Vendors Claiming to Be Compliant When They Are Not - Here is What You Need To Know

Employers who are seeking to purchase sexual harassment prevention training and policies in compliance with the new New York State and New York City sexual harassment laws must be mindful that some vendors are offering trainings that are not compliant with the new laws.

The New York State law (Section 201-g of the N.Y. Labor Law), which took effect on October 9, 2018, requires that all employers issue a sexual harassment prevention policy that meet minimum requirements including but not limited to establishing a procedure, specifically tailored to each individual employer, for timely investigation of all complaints and issuing a complaint form. 

Therefore - if a company is claiming they can offer a uniform training for any employee to take - be mindful that employers must have a sexual harassment prevention policy and complaint form that specifically shows the employee how to make a complaint and whom to make a complaint to and the information must be including in the training. In the NYS model training, it states: "The training should detail any internal process employees are encouraged to use to complain and include the contact information for the specific name(s) and office(s) with which employees alleging harassment should file their complaints."

The NYS law also requires annual training for all employees (and training for new employees within a reasonable time after hiring). The training must be interactive and must include; 1) an explanation of sexual harassment consistent with guidance issued by the Department of Labor; 2) examples of conduct that constitute unlawful harassment; 3) information regarding the specific state and federal statutory provision concerning sexual harassment and the remedies available to victims of sexual harassment; 4) information regarding employees' rights of redress and remedies available to victims; 5) information regarding conduct responsibilities of supervisors.

The New York City law (Local Law 96), effective April 1, 2019, requires employers with fifteen (15) or more employees to conduct annual training which must be interactive and must include, among other requirements, the employer's specific process for addressing sexual harassment complaints, information concerning bystander intervention and the specific responsibilities of managers and supervisors to address complaints of harassment. In addition, the NYC law requires that employers obtained signed acknowledgment from employees that they attended the training.

While not required, policies and trainings should also address other forms of harassment and discrimination (i.e. race and age), to minimize exposure to potential lawsuits against the employer.

It is imperative that employers choose a vendor who is offering trainings and policies in strict compliance to these new laws to avoid unnecessary penalties and exposure to lawsuits.

Lieb Compliance offers a fully compliant training package including a compliant sexual harassment prevention policy, complaint form and interactive training.

Friday, February 15, 2019

Sexual Harassment in the Workplace - NYS Legislative Holds Hearings to Strengthen Laws

On February 13, 2019, the NYS legislature took testimony to examine proposals to strengthen NYS's sexual harassment laws, which are already the toughest in the Country.

The testimony is available for viewing here.

Employers - remember October 9, 2019 is your deadline to train all of your employees on sexual harassment pursuant to the requirements of Labor Law 201-g. Failure to train is a misdemeanor with many adverse consequences.

Comply with your requirements today at

Thursday, February 14, 2019

Facebook has a non-discrimination policy - fair housing lawsuits are coming...

In the era of #MeToo, NYS' mandatory sexual harassment trainings (labor law 201-g), NYC's mandatory sexual harassment trainings (local law 96) and CA's expanded training requirement requirement (SB 1343), Facebook has gotten into the game.

This week, Facebook Advertisers are being required to certify that they "[h]ave reviewed and will abide by our Advertising Policies and all applicable laws" and "[w]ill not use Facebook Advertising for any wrongfully discriminatory practices." It is noted that Facebook's list of protected classes does not cover all classes protected by employment / housing discrimination laws and Facebook acknowledges this fact by stating "[s]ince non-discrimination laws vary by region, be sure to comply with our policy and relevant laws in your location and the location you're targeting."

Of note, Facebook is likely causing advertisers to agree in an attempt to insulate the platform from suit for hosting a hostile environment. However, agreeing to the policy certainly doesn't insulate the advertiser from suit.

So, be warned, your advertisements are being watched by Plaintiffs' counsel and you will be sued if you discriminate in any fashion. As such, targeting demographics is off limits and you should sell your product's / position's benefit and target user's prior preferences / searches, not specific users by their demographics (e.g., "race, ethnicity, national origin, religion, age, sex, sexual orientation, gender identity, family/marital status, disability or medical or genetic condition") and how those demographics are correlated to predicted desires.

Monday, January 21, 2019

Real Tips HR: How Employers Should Handle Sexual Harassment Complaints after Party (Episode 1)

Introducing our new HR YOUTUBE channel - answering tough questions faced by employers so you don't have to. Stay tuned for more!

View Episode OneEmployment Attorneys Andrew Lieb and Mordy Yankovich share tips for Employers about how to handle an initial sexual harassment complaint stemming from an office holiday party. Learn to 1) obtain a statement; 2) with a witness; 3) using a complaint form; 4) to evaluate whether a formal investigation is necessary; and 5) to always have a sexual harassment policy at your workplace.

Friday, November 09, 2018

Why Employers Should Outsource Sexual Harassment Trainings & Policies

Many employers are saying that they will write sexual harassment policies and conduct the mandatory trainings themselves, but they will quickly find that doing it themselves is a big mistake.

Beyond the heavy burden of compliance with Labor Law 201-g (NYS) and Local Law 96 (NYC), employers who do the trainings themselves will have to repeatedly train their staff every time they have a new hire (NYS requires as soon as possible from start date whereas NYC requires training within 90 days). 

Moreover, there are ramifications for employers who do not have their employees take the training (i.e., it's a misdemeanor and likely will trigger an EPLI insurance provider to disclaim coverage in a prospective sex discrimination lawsuit). With risk avoidance being the key to these new laws, a sexual harassment vendor should offer the following:
  1. A system to track that employees took the training in anticipation of a Department of Labor audit;
  2. A system to track that the sexual harassment policy and complaint form were distributed in writing and agreed to be followed (i.e., clickwrap) by the employee - distribution of these documents is also required;
  3. A branded policy and training, with both addressing all types of discrimination, beyond just sexual harassment, because the employer may face a discrimination suit on a different protected class and wouldn't want to have to explain to a jury why they only cared about sex discrimination, not the applicable protected class (e.g., race, marital status, disability, etc.); and
  4. Most importantly, a digital on-demand product because the training needs to be instantly available to new employees 
Lieb Compliance offer employers a web-based, on-demand interactive video training platform. While we understand that there are many vendors who train on sexual harassment, most of them don't offer online trainings in compliance with both Labor Law 201-g and Local Law 96. Further, most don't offer to digitally distribute a branded company policy and a tailored complaint form, which are both required under laws. Still further, our competitors rarely offer an opportunity for employers to require that their employees affirmatively agree to be bound by their policy through a digital clickwrap receipt. Please understand that our system goes above and beyond to make compliance easy. We include security checkpoints, randomized quiz questions, note-taking, and the ability for employees to ask questions of the instructor. We even offer monthly user reports so employers can monitor their team's compliance.  

Many "lawyers" teach, but being licensed isn't enough, being dynamic is everything when presenting emotion-ridden topics to employees. Our courses are led by Andrew Lieb, Esq., who founded Lieb Compliance and is our Chief Compliance Officer. Andrew is a prolific author and has trained tens of thousands of employees and independent contractors nationally on compliance topics. He's taught on the college level (human sexuality), he's taught corporate compliance and he even operates a New York State licensed school. Simply stated, he's our secret sauce. 

We encourage you to learn more about our Sexual Harassment Prevention Trainings and Services.

Monday, October 29, 2018

Sexual Harassment - 3 reasons why the NYS sample policy is just not enough.

Yes, New York State provides a sample policy for sexual harassment prevention. Make no mistake this policy is a great start for employers, but to use this policy without more is a big mistake. Here are 3 reasons why the NYS sample policy is just not enough:

1. It does not address every other protected class under which an employer can be sued for discrimination (e.g., race, religion, color, national origin, sex [including pregnancy], military status, age, marital status, sexual orientation, gender expression or identity, genetic information, disability or any other personal characteristics considered to be a protected class under applicable federal, state or local laws)

Updating the policy matters because when sued for discrimination by a different protected class, you will be able to explain that everyone is protected in the workplace.

2. It does not list potential remedial measures (e.g., termination, suspension, probation, demotion, reassignment, etc.).

Updating the policy matters because employees who do not know the consequences are unlikely to care about changing behavior and, more importantly, without clear expectations an employer can be sued for arbitrarily applying their policy in a discriminatory manner.

3. It does not cause an employee to agree to its terms and to acknowledge written receipt of the policy and complaint form, which is required by law.

Updating the policy matters because without records you have nothing when faced with a Department of Labor audit or a prospective lawsuit. More so, you can justify termination for cause when an employee violates your policy, which they affirmatively agreed to follow.

Thursday, September 27, 2018

Schools, First Responders & Local Governments Must Conduct Sexual Harassment Prevention Training

New York State recently passed legislation requiring all employers to conduct sexual harassment prevention training for their employees and establish a sexual harassment prevention policy. The law is effective October 9, 2018. Recent guidance issued by the Department of Labor clarified that all employers must train their employees between October 9, 2018 and January 1, 2019 and on an annual basis thereafter. In addition, all new employees must be trained within thirty (30) days of their start date.

"All Employers" required to conduct sexual harassment prevention training and establish sexual harassment prevention policies include both private and public employers. Therefore, state and local governments and agencies, towns, police departments, fire departments, school districts and all other public employers must comply with these new regulations.

For more information visit:

Tuesday, September 04, 2018

33 Days Until NYS Mandatory Sexual Harassment Training

We are on the countdown until the start of mandatory sexual harassment trainings in NYS.

Just 33 days until the October 9 start date. Remember, all employees must be trained before 1/1/2019.

Lieb Compliance is offering onsite, on-demand web-based interactive videos and/or live trainings at our training center at 308 W. Main Street, Smithtown New York.

All trainings will be instructed by employment law litigators so that our content is immersive with real world examples.

To schedule your company's training - email the following information:
  • Company name
  • Your name / position / title 
  • Your telephone number
  • Your email address
  • Total amount of employees at your company
  • Whether you have a policy already in place (also required)
  • Whether your employees are computer literate
  • What days / times you request a training
Within 48 hours, a representative from Lieb Compliance will be in contact to solve your compliance obligation.

Tuesday, August 28, 2018

ATTENTION ALL EMPLOYERS | Sexual Harassment Trainings ARE NOW MANDATED IN NYS | Lieb Compliance Offers Solutions

Every employer in New York State is required to provide employees with sexual harassment prevention training pursuant to Section 201-g of the Labor Law.

The Burden - All employees MUST complete the training before January 1, 2019. This training must be:
  • Interactive with participation 
  • Accommodate questions 
  • Answer questions
  • Enable employee feedback on the training and materials
Great news, Lieb School, already has a course that is approved for continuing education credits in the real estate brokerage industry -  Sexual Harassment & Brokerage

The Solution - Lieb Compliance is launching NYS Compliant Sexual Harassment Trainings for employers at our state of the art training center at 308 W. Main Street, Smithtown New York on October 1, 2018. Concurrently, Lieb Compliance is launching tailored online trainings because employers are required to train new employees within 30 days of start date.  

To schedule your company's training - email the following information:
  • Company name
  • Your name / position / title 
  • Your telephone number
  • Your email address
  • Total amount of employees at your company
  • Whether you have a policy already in place (also required)
  • Whether your employees are computer literate
  • What days / times you request a training
Within 48 hours, a representative from Lieb Compliance will be in contact to solve your compliance obligation.

Wednesday, May 23, 2018

NYS Sexual Harassment Law Exposes Businesses to Claims by Independent Contractor Victims of Independent Contractor Harassers: Real Estate Brokerage Firms be Warned

NYS companies utilizing the services of independent contractors, such as real estate brokerage firms, are now exposed to liability for the acts of their independent contractors who sexually harassed other independent contractors who were associated with the same company by way of new Executive Law.

Read the full article by Andrew Lieb, Esq. here. 

Wednesday, April 25, 2018

Sexual Harassment Protections Extended to Independent Contractors in New York State

As of April 12, 2018, companies in the State of New York are now exposed to liability for harassment of independent contractors in the workplace.  The text of the new law can be found here. The New York State Human Rights Law previously only protected employees from sexual harassment.  While the statute does not specify whether companies can be held liable for acts of their independent contractors who sexually harass other independent contractors, the statute does state that when determining whether a company is liable for the acts of the harasser, the “extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of the harasser” should be considered.  This language appears to imply that companies such as real estate brokerages which subject independent contractors to substantial supervision (as required by 19 NYCRR §175.21(a) and Real Property Law §441(1)(d )), would be exposed to liability for all acts of harassment committed by their independent contractors.  It is thus imperative that brokerage firms immediately implement sexual harassment policies and trainings for their independent contractors in addition to their employees to mitigate potential exposure.  

Monday, February 26, 2018

DOJ Launches Sexual Harassment in Housing Initiative

The Civil Rights Division of the Department of Justice announced a new initiative that brings local law enforcement, legal service providers, and DOJ officials together in order to encourage victims to report instances of sexual harassment, increase awareness, assist in obtaining necessary resources for relief, and ultimately, continue the vigorous enforcement of the Fair Housing Act’s ban on sexual harassment.

This initiative stemmed from four cases in 2017, wherein DOJ recovered over $1 million in damages for claims of sexual harassment and violations of the Fair Housing Act. Two of those cases are U.S. v. Kansas City, Kansas Housing Authority and U.S. v. Tjoelker.

On September 29, 2017, DOJ executed a settlement agreement resolving a case against Kansas City Kansas Housing Authority (KCKHA). The Complaint alleged KCKHA employees engaged in a pattern or practice of sexually harassing female housing applicants and residents. One defendant even admitted in sworn deposition testimony that he exposed himself to multiple females. In the agreement, the fourteen aggrieved females were awarded $360,000 in monetary damages. In addition, KCKHA was ordered to implement a written policy against sexual harassment, including a formal complaint procedure to be approved by DOJ and to pay a $5,000 civil penalty to the United States.

On October 3, 2017, DOJ also executed a settlement agreement against Frank Tjoelker, owner and/or manager of rental dwellings in Grand Rapids, Michigan. The Complaint also alleged that he engaged in a pattern or practice of sexually harassing actual and prospective female tenants. Allegations include unwelcome sexual comments and advances, unwanted groping or touching, offers for housing benefits in exchange for sexual favors, and taking or threats of taking adverse housing actions for those who object to such harassment or refuse to grant sexual favors. Under the settlement agreement, Tjoelker was ordered to pay $140,000 to compensate the ten victims and a $10,000 civil penalty to the United States.

Although DOJ only executed settlement agreements to obtain resolutions on the above-mentioned cases and such agreements are binding only among the parties involved, it is likely that DOJ will apply similar penalties in future settlement agreements or decisions on violations of the Fair Housing Act’s sexual harassment ban. See U.S. v. Bailey, U.S. v. Barnason, and U.S. v. Bathrick.

In this regard, as evidence of good faith compliance with the Fair Housing Act, real estate professionals are encouraged to establish written policies against sexual harassment, to train their employees and agents to identify and refrain from engaging in acts of sexual harassment, and to establish procedures for handling complaints.