Recently, the U.S. Department of Justice posted on its website an Agreement Between the United States and the State of New York Executive Chamber Regarding Workplace Reform.
This agreement comes in the wake of sexual misconduct charges against former New York Governor Andrew Cuomo, who was found to have subjected at least 13 female staff members to unwanted, non-consensual sexual contact and repeated sexual comments in violation of Title VII of the Civil Rights Law. Furthermore, Governor Cuomo’s senior staff was charged with failing to follow the proper procedures in place for reporting, effectively shielding Cuomo from liability.
This agreement, entered under current Governor Kathy Hochul, contains reforms that have already been enacted in the Executive Chamber along with additional reforms that will be implemented as part of the agreement. Additionally, the reforms contained in the agreement may provide insight into how New York business owners should conduct their business considering this investigation.
So, what’s in the agreement exactly?
Creating and Expanding the Human Resources Department
Following Cuomo’s resignation in August 2021, Governor Hochul as instituted a series of reforms designed to address sexual misconduct. One of these reforms was the creation of a Human Resources Department. The department’s main concern is providing guidance on employer relations and training employees in appropriate workplace behavior. Furthermore, the HR Department is set up to hear any complaints of sexual misconduct or other violations.
While it may seem commonplace for a business to have an HR Department, the absence of one can create major problem for you and your business. Therefore, you want to make sure that your department, if you have one, is adequate both in size and substance. For example, you may want to hire an HR coordinator who has prior experience in conflict management and reporting. If you don’t have an HR Department, look into outsourcing your HR function to a competent HR professional or creating one to protect yourself and your business from liability.
Separate Requirements for Supervisors
Additionally, the agreement creates an alternative complaint process when reporting senior officials and supervisors. This will create a safe environment for employees to report inappropriate behavior or misconduct without fear of retaliation. The process provides that any complaints against supervisors will be sent to a third-party law firm to eliminate bias and to promote following the law.
The agreement also provides for separate training for supervisors, which touches on the topics of mandatory reporting, preventing harassment or inappropriate behavior, and monitoring for retaliation. A separate training can be critical for your business as it will provide you with the knowledge necessary to run a compliant business while assuring employees of your commitment to creating a safe and comfortable work environment.
Anti-Retaliation Policies
The agreement also contains policies meant to eliminate retaliation against reporting employees. Retaliation occurs when an employer or coworker takes a negative action towards an employee for their engaging in a protected activity, such as reporting sexual harassment. The policy includes providing employees who have reported misconduct an opportunity to follow up and report any retaliatory actions to human resources.
Retaliation is unlawful under both Title VII of the Civil Rights Act and the New York Human Rights Law. Thus, if you don’t have an anti-retaliation policy, you may want to consider implementing one not only to protect yourself from litigation, but to encourage your employees to report harassing or inappropriate behavior.
Evaluating and Reforming as Needed
Finally, one of the key reforms is the Executive Chamber’s agreement to consistently evaluate other reforms, their effectiveness, and how they can be improved as time goes on. This practice is imperative in any business to make sure your policies and practices are up to date with the current laws and to identify areas of the business that need improvement. Areas to be regularly evaluated include:
- Employee reporting mechanisms
- Existence and/or knowledge of harassment or misconduct
- Comfort of employees in the workplace
- Adequacy of anti-retaliation policy
While the reforms in this agreement are meant solely for the New York State Governor’s Office, they provide a foundation for how businesses are expected to act under federal civil rights laws. Therefore, the agreement provides an important lesson for business owners in how to treat their employees and how to ensure compliance with important federal and New York State anti-harassment and anti-retaliation laws.
If you have questions about this agreement, how to ensure compliance in your company, or questions about any other aspects of employment law, we can help. Contact The Coppola Firm at 716.839.9700 or at info@coppolalegal.com.
