By Timothy C. Hannigan, FASNY Attorney
In connection with the adoption of this year’s budget in April, New York State enacted Labor Law § 201-g. This new law, which took effect on October 9, 2018, mandates: (1) the adoption of a sexual harassment policy and (2) an interactive training program for employees. The statute creates no distinction between “volunteer” and “paid” employees and has no “minimum employee” threshold. Accordingly, we must recognize and understand this law as one applicable to the volunteer fire service.
Sexual harassment is not a new topic for the fire service, and many authorities having jurisdiction over the provision of fire protection (i.e. Fire Districts, Towns, Villages) have adopted sexual harassment policies and included similar training in their yearly drill schedules. However, we anticipate that this law may be unknown to your authority having jurisdiction or will require modification of your existing sexual harassment policy and training program.
Below is what you need to know and how you can ensure that your fire service entity complies with this new requirement.
The Sexual Harassment Prevention Policy
The new law requires employers to adopt a sexual harassment prevention policy. A copy of the policy must be given to every employee in writing. The law is unclear as to whether this policy may be posted on a fire district intranet or distributed electronically versus in-hand. Regardless of the means of distribution, AHJs should maintain a record of when a firefighter was given a copy of the policy or an acknowledgment from the firefighter that the firefighter received the policy and is aware of how to access the policy (if contained on an intranet or electronic-based portal).
The minimum requirements of the policy are as follows: (i) Must explain that sexual harassment is prohibited and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
(ii) include information regarding federal and state laws governing sexual harassment and remedies available to victims of sexual harassment
(iii) include a statement that there may be local laws applicable to sexual harassment;
(iv) include a standard complaint form;
(v) include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
(vi) inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
(vii) clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment as well as supervisory and managerial personnel who knowingly allow such behavior to continue; and
(viii) clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding is unlawful.
The Sexual Harassment Prevention Training Program
The new law requires employers to provide annual training to employees. The law also mandates that such training be “interactive.” The “interactive” requirement is one that should be readily attainable through classroom instruction. To the extent your AHJ previously relied on online sexual harassment training, the AHJ must determine whether such training complies with the new law and/or seek out new training that complies with the “interactive” requirement.
The minimum requirements of the sexual harassment prevention training program are as follows:
(i) provide an explanation of sexual harassment consistent with guidance issued by the Department of Labor;
(ii) furnish examples of conduct that would constitute unlawful sexual harassment;
(iii) include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment; and
(iv) inform employees concerning rights of redress and all available forums for adjudicating complaints.
As is the case with distribution of the sexual harassment prevention policy, AHJs should maintain a record of when a firefighter was trained and/or obtain an acknowledgment from the firefighter that the firefighter received the required training.
Notably, the Department of Labor has created both a model policy and model training program for employers. Before adopting these model documents wholesale, AHJs should evaluate whether the model provisions apply to the fire service workplace and identify interactive training mechanisms that engage firefighters and the everyday scenarios that we encounter as volunteers.
DISCLAIMER: The information contained herein does not establish an attorney-client relationship between the author and the reader. Matters addressed are for information purposes only and the reader should seek advice from competent local counsel in regard to taking action on any matters addressed herein.