Most people engaged in agriculture will agree that there is no place for harassment, sexual or otherwise, on farms. It is easy to make this case from an ethical standpoint (remember the golden rule), from a business standpoint (happy employees are productive employees), and from a liability standpoint (employees who experience harassment at work might sue their employer). Nevertheless, many of us who work in agricultural jobs have witnessed, experienced, or heard stories about inappropriate workplace behavior.
Recent changes to NY’s sexual harassment laws have brought this issue to the attention of employers across the state, including agricultural employers. Now, farm businesses in NY must take action to protect their employees from sexual harassment in the workplace, not only for ethical, economic, and risk management reasons, but also because it is the law.
This article covers the five new rules that affect private sector employers in NYS, and what they mean for agricultural businesses in particular.
1. Employers must enact a sexual harassment prevention policy, provide the policy in writing to their employees, and train employees at hiring and annually.
October 9, 2018 was the deadline for all NY employers to adopt a sexual harassment prevention policy. The New York State Department of Labor (NYSDOL) makes it easy for employers to comply with this rule by providing a model policy that you can adopt and customize for your business. You can find translations of the model policy in 8 different languages on the state’s website.
NY employers are required to provide sexual harassment prevention training to all employees at hiring and annually. You need to complete your first employee training by October 9, 2019 to be in compliance. The training must be interactive and meet the minimum requirements set out by the state.
NYSDOL provides a set of training materials on its Combatting Sexual Harassment in the Workplace website. With these resources, you as the employer, or your human resource manager, can deliver an approved employee training.
A team of Cornell Cooperative Extension (CCE) educators is adapting the state’s resources to create a set of “farm-focused” training materials, intended to make the information more relatable to farm workers. These materials will be available in English and Spanish from Cornell Agricultural Workforce Development, starting in mid-August.
The resources provided by NYS and CCE are intended to make it easier for employers to offer the training in house. However, if no one in your company is comfortable delivering a sexual harassment prevention training, consider hiring an outside consultant to train your employees.
2. New York State contractors must have a sexual harassment policy, and they must provide sexual harassment prevention training to employees.
In order to submit a bid, all contractors that provide services to NYS must affirm that they have adopted a sexual harassment policy, and that they provide annual sexual harassment prevention training to all of their employees. This provision only applies to contractors bidding on state jobs, so it may not directly affect your farm business.
3. The scope of Human Rights Law is expanded to protect non-employees from sexual harassment in the workplace.
NYS has expanded legal protections, previously limited to employees, to protect additional types of workers. This means that NY employers are now required to protect contractors, subcontractors, vendors, and consultants from sexual harassment in the workplace.
Many farm businesses contract with a variety of professional service providers. Machine operators, veterinarians, nutritionists, crop consultants and bookkeepers all visit farms to serve their clients. In most cases, these individuals are not direct employees of the farm. However, when they come onto your farm they are entitled to a harassment-free workplace.
As a farm business, you are not required to provide a sexual harassment policy or training to these non-employees. However, you are responsible for ensuring that these individuals do not experience sexual harassment, or any form of discrimination due to protected status, when they visit your farm to fulfill the duties of their job.
4. New York employers cannot force employees to submit sexual harassment claims to mandatory arbitration.
Mandatory arbitration is a process that requires conflicting parties to settle their disputes before an arbitrator instead of going to court. NY’s new legislation prohibits any clause in an employment contract that forces employees to submit sexual harassment claims to mandatory arbitration. In other words, this rule protects an employee’s right to sue their employer over a sexual harassment claim.
Mandatory arbitration has become a common condition of employment contracts in the U.S. This may be less common in agricultural businesses, simply because many farms do not use written employment contracts. If your farm does use employment contracts, have your attorney review the contract language to ensure it complies with the new labor regulations.
Occasionally employee handbooks include a paragraph indicating that mandatory arbitration will be used to settle any employment disputes. The new law means that this requirement does not apply for sexual harassment claims. Employers should review their handbooks to determine if they have a mandatory arbitration clause, and seek competent advice about whether they should retain it or not.
5. New York employers cannot force employees to sign a nondisclosure agreement as a condition of settling a sexual harassment claim.
A nondisclosure agreement is a legal contract in which the parties agree to maintain the secrecy of certain information. For instance, when a legal dispute is settled, the parties may sign a nondisclosure agreement to protect the confidentiality of their settlement terms. In the case of a conflict between an employee and their employer, the employer may force the employee to sign a nondisclosure agreement as part of the settlement. As a defendant in a legal case, an employer may use this strategy to protect its reputation from potentially damaging information known to the plaintiff.
As of July 2018, NYS no longer allows employers to make employees sign nondisclosure agreements when settling a sexual harassment claim. Confidentiality agreements are permitted only when explicitly requested by the victim.
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As an employer in NY, you have a big responsibility to provide a workplace that is safe and free from harassment. Your leadership is important! If you do not treat preventing sexual harassment as a serious matter, why should your employees take it seriously? Avoid lagging behind the rest of your industry with respect to these new rules. There are plenty of free resources to help you comply. Be proactive and take steps now to protect your business and your employees.
Resources
Combatting Sexual Harassment in the Workplace – Employer Page:
https://www.ny.gov/combating-sexual-harassment-workplace/employers
Combat Harassment Translations:
https://www.ny.gov/combating-sexual-harassment-workplace/combat-harassment-translations
Cornell Agricultural Workforce Development – Sexual Harassment Prevention:
http://agworkforce.cals.cornell.edu/regulations/sexual-harassment-prevention/