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Brooklyn Bar Association CLE covers new sexual harassment laws in New York State

October 1, 2019 Rob Abruzzese
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New York State is finally taking sexual harassment in the workplace seriously and has implemented a series of new laws and statutes over the past 18 months. In order to make sense of these new rules, the Brooklyn Bar Association hosted a continuing legal education (CLE) seminar to help local attorneys understand the rights and requirements.

Justice Katherine Levine, Kings County Supreme Court, Civil Term, and attorneys Rachel Demarest Gold and Joan Lenihan took part in a discussion entitled, “New Sexual Harassment Reporting Requirements and First Amendment Implications” at the bar association on Tuesday, Sept. 24.

“The bottom line is that we all have the right to go to work, make a living and feed our families without being subjected to harassment and discrimination in the workplace, plain and simple,” Demarest Gold said.

Justice Levine, who sits in the city part in Kings County Supreme Court, is the chair of the employment and labor law committee at the Brooklyn Bar Association. Prior to her time on the bench, she worked for 23 years with the teachers’ union where she specialized in labor employment issues.

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Demarest Gold is a partner at Abrams Fensterman where she practices with the firm’s labor and employment, criminal and government litigation, law and policy practice groups. Prior to that, she served as a prosecutor in the Bronx District Attorney’s Office and the Office of the Attorney General under Andrew Cuomo.

Lenihan is a solo practitioner whose firm focuses on representing people who have suffered employment discrimination. She also helps clients with estate planning. She is also a regular CLE panelist at the Brooklyn Bar Association and the New York State Bar Association.

As part of the new law, most employees throughout the state must undergo required sexual harassment training before Oct. 9 (all workers upstate are required, but in New York City it’s only employees at companies with 15 or more workers). All attorneys, including solo practitioners with at least one employee, are also required to take training sessions under the law.

Sexual harassment in the workplace has been illegal in the state for at least the last 40 years. However, the new law brings additional requirements. One is that now managers, management, supervisors and executives are required to report any incidents they see and can be held personally liable if they do not.

“The law and process that has been put in place by the statute is designed to weed out not only people who are harassing and discriminating against other people, but to protect people who are victimized by accusations,” Demarest Gold said. “This isn’t an us-against-them, this isn’t about men or women, it’s about discrimination plain and simple, based on gender.”

Justice Levine explained that while many of the new rules are common sense, some are not, especially when it comes to speech. The judge spent time going over when and how people can get in trouble for their speech and offered a number of scenarios to demonstrate her explanations.

“What if two co-workers are speaking together and that conversation is meant to be private?” asked Justice Levine, who explained that there can be a difference in free speech rights for public and private employees, especially if that person is a government official in a management position.

Lenihan discussed the move to get rid of mandatory mediation clauses in employment contracts as well as non-disclosure agreements.

“Initially, the proponents of the legislation were very anxious to have prohibition of mandatory arbitration as well as non-disclosure agreements as part of the legislative package because they felt there was too much getting away with murder, if you will,” Lenihan said. “Many times, there were serial offenders who would make agreements that they could make go away quietly with a lot of money, or there was a clause that forced arbitration, so the matter stayed private.”

However, federal laws have made it hard for the state to get rid of mandatory arbitration entirely, she explained. She also said that, in some cases, people want to sign a non-disclosure agreement.

The Brooklyn Bar Association’s next CLE, “Nobody’s Victim: New York State’s Revenge Porn Law,” will be held on Thursday, Oct. 3 at 6 p.m. with attorneys Carrie Goldberg and Susan Crumiller. The two will discuss the state’-s new “revenge porn” law and how attorneys can use it to protect their clients from the non-consensual distribution of intimate videos and pictures.

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