Provided by: Jennifer Kirschenbaum, Esq.
June 9, 2022
We train on sexual harassment (prevention and reporting, that is), and also we have employees fill out a training card. Do I need to include language in our agreements "for cause" for sexual harassment?
Glad to hear you are following the basics - in NY and many states sexual harassment training is now a requirement for all employees. What is not a requirement is the employer to shoulder the weight of financial loss as a result of employees sexually harassing a coworker or client, patient, vendor or otherwise. Preventing incurring damages is a multi-step process that starts with training, includes enforcement and culminates with contractual protection and (Recommended) an insurance product (EPLI insurance). With the "onion" approach - multi-layered - you are prepared to face the elements. A contractual protection you can take is to include sexual harassment as a line item "for cause" event. An issue that may arise in doing so, of course, is whether or not sexual harassment has in fact occurred, and who shall be the decider if that is the case. Language will need to be crafted to address both elements of the determination, which may be subjective.
When it comes to sexual harassment, the key area we recommend contractual language is in the training materials - do not waste the opportunity to have language around employees indemnifying (taking financial obligation for damage they cause) as a result of sexual harassing conduct.
If you aren't sure if your training policies have good language protecting you from damage employees may cause, send over your forms and we'll take a look. If not, we can replace your employee acknowledgement. We regularly assist with trainings and language development. Options here - https://www.kirschenbaumesq.com/page/practice-compliance.