April 21, 2016 Sexual Assault Awareness and Prevention & Workplace Violence Prevention
KEEPING YOU INFORMED…
April is Sexual Assault Awareness and Prevention Month. It is also Workplace Violence Prevention Month. This memo provides an overview of the latest developments in these areas of the law, along with a refresher on employer obligations. Even if the existing laws or most recent changes to them do not apply to you, we encourage you to review your anti-sexual harassment and anti-workplace violence policies and procedures to help better ensure a safe workplace for all.
Sexual Assault and Harassment
As a general concept, sexual assault includes, among other things, unwanted sexual contact and other forms of sexual harassment. This type of conduct, as well as sexual harassment, can occur anywhere, including in the workplace.
There has been an increase in media coverage on the frequency of sexual assaults on college campuses. In response, on July 7, 2015, Governor Cuomo’s “Enough is Enough” legislation was signed into law. It amends the New York Education Law and the New York Civil Practice Law and Rules to extend the sexual assault prevention policies that had already been adopted by State University of New York (“SUNY”) campuses to all New York colleges, requiring them to adopt and implement guidelines and procedures designed to prevent sexual assault on college campuses. For example, college campuses must now use a uniform definition of “affirmative consent” as part of their code of conduct and report aggregate data to the State Education Department regarding domestic violence, dating violence, stalking and sexual assault. This law also defines, among other things, when consent to sexual activity may and may not be given, and that it can be withdrawn at any time, even if it had initially been given.
Sexual assault and harassment are, unfortunately, not limited to college campuses. In 2015, the U.S. Equal Employment Opportunity Commission (“EEOC”) received 6,822 Charges alleging sexual harassment, nearly 83% of which were filed by women. The EEOC defines sexual harassment to encompass, among other things, “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”
Sexual harassment can range from offensive touching to verbal remarks and even lewd e-mails or text messages. Workplace sexual harassment includes sexual harassment that occurs between or among coworkers, as well as sexual harassment by customers/clients who interact with employees both within and outside of the workplace setting. It may occur even after work hours.
It is crucial that an employer take affirmative steps to ensure that its anti-sexual harassment policy covers these situations, provide multiple avenues for reporting instances of sexual harassment (especially because sexual harassment may occur between a superior and subordinate) and effectively communicate the policy to all employees. As a best practice, any complaint of sexual harassment, whether verbal or in writing, should be thoroughly investigated and the details and results of the investigation should be formally documented.
Workplace Violence Prevention
Workplace violence also has, unfortunately, received a lot of press over the last several months, especially after the mass shooting in San Bernardino, California. Given the increase in frequency of these tragic events, we recommend that employers review their workplace violence prevention policies both internally as well as with their staff.
New York State’s Workplace Violence Prevention Act, which was enacted in 2006, requires most public employers to create and implement programs aimed at preventing workplace violence and maximizing employee safety. The New York Department of Labor defines workplace violence as:
[A]ny physical assault or act of aggressive behavior occurring where a public employee performs any work-related duty in the course of his or her employment, including, but not limited to:
(i) An attempt or threat, whether verbal or physical, to inflict physical injury upon an employee;
(ii) Any intentional display of force which would give an employee reason to fear or expect bodily harm;
(iii) Intentional and wrongful physical contact with a person without his or her consent that entails some injury; or
(iv) Stalking an employee with the interest in causing fear of physical harm to the physical safety and health of such employee when such stalking has arisen through and in the course of employment.
In accordance with this Act, employers must, among other things, develop and implement a written policy statement regarding their workplace violence prevention goals/objectives; evaluate the workplace to determine potential workplace violence risks; develop a written workplace violence prevention program with the participation of an authorized employee representative; train and provide information to each employee on the risks of workplace violence in their workplace(s) both at the time of the employee’s initial job assignment and on an annual basis (or more frequently) thereafter; and document and comply with recordkeeping requirements for workplace violence incidents. The State Department of Labor has also developed a comprehensive guide for public employers on how to comply with these workplace violence regulations.
As with complaints of sexual harassment, a workplace violence allegation should be immediately investigated, with the details and results of the investigation documented. In certain instances, an employer may need to involve law enforcement in the investigation. We encourage you to consult with legal counsel when developing/modifying a workplace violence prevention program or when facing a related personnel issue.
All incidents of violence, no matter of what type and where they occur, or whether they are employment-related or personal in nature, can have dire consequences on the workplace. This includes, but is not limited to, diminished employee productivity and increased potential litigation risk. Training on this topic, including training regarding the employer’s anti-sexual harassment and anti-workplace violence policies, is a critical component of preventing sexual assault and workplace violence. It also helps to mitigate the employer’s potential liability associated with sexual harassment/assault and workplace violence incidents.
The training should include, among other things, an overview of the employer’s relevant policies, guidance for management on how to communicate with employees regarding domestic violence, dating violence, workplace violence, sexual assault, sexual harassment, and stalking. It should also make clear to both management and employees when the employer has an obligation to take concrete action (such as conducting an investigation) or to notify law enforcement about an incident. Perhaps most importantly, both management and employees should be trained on how to handle incidents where either one employee is the victim and another employee is the perpetrator, or where a superior harasses, assaults or otherwise commits workplace violence against a subordinate. This includes to whom an incident should be reported and when and what steps should/will be taken to prevent recurring incidents.
If you would like assistance with creating, revising, updating, implementing or providing training on sexual harassment or workplace policies to address the topics above, or if you would like guidance with regard to a particular sexual harassment/assault or workplace violence incident, please contact Alyssa Zuckerman at ALZ@lambbarnosky.com, or one of our other attorneys.
 The new provision is Article 129-B.
 A new subdivision “i” has been added to Rule 3016, addressing the privacy of individuals’ names in legal challenges of disciplinary findings by colleges/universities regarding a violation of Education Law Article 129-B.
 The legislation defines “affirmative consent” as a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.
 Excluded from this Act are employers listed in Education Law § 2801-A (e.g., public school districts, New York City public schools, BOCES and County Vocational Education and Extension Boards).
 12 N.Y.C.R.R. 800.6(d)(11).
 Required only for employers with 20 or more full-time permanent employees.
 See generally 12 N.Y.C.R.R. 800.6.
 Available at: https://labor.ny.gov/workerprotection/safetyhealth/PDFs/PESH/WPV/How%20to%20Comply%20Guide.pdf.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2016