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Berke-Weiss Law Testifies in Albany

Associates Rosa Aliberti and Alex Berke submitted the following testimony at the February 13, 2019 Joint Committee Hearing on Sexual Harassment in the Workplace in Albany.

Dear Senators and Assemblymembers:

Thank you for convening this important joint committee hearing on Sexual Harassment in the Workplace and for giving us the opportunity to testify. Our names are Rosa Aliberti and Alex Berke, and we work as Associates at Berke-Weiss Law PLLC in Manhattan, a woman-owned employment law firm that represents both employers and employees. We applaud the Legislature for passing a series of laws last session to address the very timely issue of sexual harassment in the workplace. We have worked on these issues before and after the #MeToo movement began, and appreciate the Legislature’s work to bring employers and employees on the same page about what constitutes sexual harassment, and how to prevent it. This is especially important because so many claims of sexual harassment are being dealt with in the workplace, at a time when our cultural standards are changing more rapidly than the legal system. Whether or not a claim of sexual harassment is ultimately decided in court, a state agency, city commission or an arbitration, the action or inaction of the employer will likely have an effect on the ultimate decision.

 

Our goal today is to highlight some of the challenges we see in our practice for employees and employers who are complying with the new laws, in an attempt to help your work moving forward.

Employers

We see three main challenges for employers in complying with the new anti-sexual harassment laws. 

(1)  Conducting annual training for all employees is a practical challenge for small employers.

Because the new laws affect all employers in New York State, small employers generally have the same compliance obligations as large employers, but do not have the same resources as their large counterparts. For example, small retail stores that are working to comply with the New York State and New York City requirements to provide training are struggling to understand the requirements and provide effective training to its workforce. These are low-margin, high turnover businesses, generally employing low-income workers from various cultural backgrounds, who speak many different languages and have varying levels of education, and who do not work 9a.m.-5p.m. office jobs.  Providing compliant training to this workforce is costly and time-consuming.

The importance of anti-sexual harassment training cannot be overstated, and the fact that the New York State Division on Human Rights has created and disseminated training resources through their website means that all employers have access to compliant training tools. While the training videos are a good start, and we appreciate that the trainings are being offered in more languages, there are still employees who are not served by the languages available. Small employers and employees also may not have access to technology to provide or watch the state-provided videos. To make sure that all New York employees receive training, financial support may also be appropriate to provide small businesses with technology and/or translators, to insure that sexual harassment training is available to all employees.

Please do not discount the financial and time cost to employers to implement these trainings. A low-earning immigrant community of workers in a retail store will have different training needs than a large corporation with office workers. Hopefully the Division on Human Rights can continue to create basic trainings for employees in different types of industries, as well as in different languages.

(2)  Understanding How to Apply Law to Contractors.

Now that employers have liability for any harassment suffered by non-employees in the workplace, this creates questions for how employers should train contractors and make them abide by policies. The area of law regarding classification of someone as an employee or a contractor is often fraught, with the New York Workers’ Compensation Board and Department of Labor frequently investigating employers who do not provide workers’ compensation or unemployment insurance because contractors have been misclassified. Those investigations often follow a letter from the Workers’ Compensation Board or Department of Labor to the employer stating that they owe thousands of dollars for workers’ compensation or unemployment insurance. A key area of inquiry in determining if a contractor should really be classified as an employee is the level of control the employer exercises over them.  

Requiring contractors to follow company anti-sexual harassment policy, and potentially even receive training, may implicate whether they should be considered employees. Further guidance regarding how contractors should be educated regarding these policies, and potential guidance from the Workers’ Compensation Board and Department of Labor addressing how this will impact worker classification would help employers comply effectively with the new law. 

(3)  Understanding Due Process For Workplace Investigations.

Due process is the underpinning of our system of laws. Enshrined in the Constitution, due process is generally understood as the ability for an individual to have access to fair procedures before being deprived of life, liberty or property. By requiring that employers create policies that “include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties,” the legislature have given employers a complex requirement without much direction.

Workplace investigations regarding sexual harassment are not new, it has been best practice for a long time for employers to perform investigations to determine what action to take regarding the subject and proponent of the complaint. It is new for those investigations to be required and to take place in a high stakes climate where many people accused of harassment are being held to account in an extrajudicial manner, either in the court of public opinion, or in settlement proceedings between the parties.

In this climate, employers are being directed to balance two requirements which are potentially at odds – performing a confidential investigation that allows for due process for all parties. Due process should include the opportunity for both parties to see the evidence against them and respond, and to appeal any decision made against them. But employers are not under any obligation to share the results of their investigation with the relevant parties, and may have important reasons not to, for example, protecting the confidentiality of other employees in the workplace, or the person who brought the complaint. Further, New York is an at-will employment state, where employees can be fired for any reason, as long as it is not discriminatory.

Requiring that employers’ investigations “ensure due process for all parties,” needs to be better explained. As it currently stands, the legislature is requiring employers to maintain the standards of the legal system, when the workplace has fundamentally different values and requirements. Without further guidance for employers, this lofty goal of due process is at risk of being devalued in practice.

Employees

One of the biggest tensions in addressing sexual harassment in the workplace is the balance between confidentiality and openness. On the one hand the media has been replete with stories of harassers not held publicly to account, allowing them to harass and impact the lives of too many. On the other hand, victims of harassment may not always want their story to be public, sometimes they need financial remuneration to be made whole for time or opportunity loss and for emotional damages, or want to hold the harasser accountable, but do not want to be forever associated with this episode of their lives.

Because relatively few sexual harassment legal claims are litigated in court, and even fewer are decided by a jury, there is not a lot of publicly searchable information regarding the financial value of cases. Different statutes provide for potential damages calculated on the basis of lost wages, emotional distress, attorneys’ fees and punitive damages, or punishment against the employer.  When parties settle, often there are confidentiality clauses, and even if the agreement is not confidential, if settled privately, there’s no forum to search that data.

This lack of information is understandable, but it also means that employees are at a disadvantage when negotiating against employers in their ability to value claims, both in terms of their claim as valued generally and specifically with this employer. The legislature should continue to explore options for balancing the confidential needs of victims with the public interest in how sexual harassment claims are valued.

Further, we wanted to highlight the challenge inherent in the “preference agreements,” created to give employees the opportunity to only agree to confidentiality if they prefer it. In practice, employers will not agree to a settlement agreement without confidentiality. The most value to an employer in settling a claim of sexual harassment is to ensure that there is confidentiality. Therefore, the requirement for these agreements, while well-meaning, mostly has the effect of changing the tenor of the negotiation, and potentially decreasing the value of settlement while prolonging the negotiation process, and delaying the payout to an employee who brings a claim.

Finally, if the spirit of the law is to allow employees to speak about their experience, there are contractual provisions other than confidentiality within settlement agreements which could limit employee’s speech. For example, these agreements routinely include non-disparagement clauses, which prevent employees from saying anything negative about their former employer in any forum. The tension between allowing employees to share their stories while obtaining financial recovery from employers creates an inherent conflict between allowing employees to share their story and incentivizing the employers to settle, since employers generally value settlements based on, among other things, their reputation, publicity and costs.

Thank you again for this opportunity to testify and for your work creating clear standards for the workplace.

Alex Berke