In New York, Am I Entitled To Fair Procedures In My Employer’s Internal Investigation Of Me For Sexual Harassment?
This article will address:
- Executives’ and professionals’ entitlement to fair procedures when their employer in New York is internally investigating them for sexual harassment.
- The importance of New York Labor Law § 201-g to executives and professionals in New York whose employers are internally investigating them for sexual harassment.
- Persuasive authority as to what fair procedures an accused executive or professional in New York is entitled to in an employer’s internal investigation of that executive or professional for sexual harassment.
Yes, in New York, you are entitled to fair procedures in your employer’s internal investigation of you for sexual harassment. Specifically, in your employer’s internal investigation of you for sexual harassment, you are entitled to “due process.”
Precisely what “process” is “due” to you is an unsettled issue. That is, it’s an undecided issue exactly what fair procedures an accused executive or professional in New York is entitled to in an employer’s internal investigation of that executive or professional for sexual harassment.
Based on persuasive authority from a sister state, it’s submitted that in an employer’s internal investigation of an executive or a professional for sexual harassment in New York, the due process afforded, by N.Y. Labor Law § 201-g, to these accused executives and professionals mandates that the employee be accorded certain procedural rights before discipline of the employee becomes effective. At a minimum, these pre-removal safeguards must include notice of the proposed action, the reasons for the proposed action, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the employer initially imposing discipline.
So, too, based on convincing federal authority, it’s submitted that in New York, the due process guaranteed, by N.Y. Labor Law § 201-g, to executives and professionals requires that an employer handling an internal complaint of sexual harassment against an executive or a professional provide the following written notice to the accused employee:
Notice of the allegations potentially constituting sexual harassment, including sufficient information available at the time and with sufficient time to prepare a response. Sufficient information include the identities of the parties involved in the incident(s), the conduct allegedly constituting sexual harassment, and the date(s) and location(s) of the alleged incident(s), if known.
When this author is representing executives, professionals, supervisors, and managers in New York in employers’ internal investigations of these professionals for alleged sexual harassment, this author demands, of the employer, that it afford to the accused executive or professional, among other fair procedures, the above-mentioned safeguards.
Employment At Will
New York State is an at-will employment state. This means that employment law in New York is not always fair, and it is not always just.
In New York, unless you have a contract of employment that states otherwise, or unless you are a member of a labor union, you can be fired for any reason or no reason, good reason or bad reason, as long as it’s not a reason that’s prohibited by statute or public policy.
If you are in the private sector in New York, and you have no employment agreement, your employer may lawfully fire you because they believe you’ve engaged in unlawful workplace harassment, even if your employer’s determination is mistaken.
New York State’s Model Sexual Harassment Prevention Policy
In 2023, the New York State Department of Labor (the “State Department of Labor” or the “NYSDOL”) revised its model sexual harassment prevention policy for all employers in New York State. The State Department of Labor’s 2023 model sexual harassment prevention policy stipulates that the employer “will conduct a prompt and thorough investigation that is fair to all parties,” including both the victim and the accused.
New York Labor Law § 201-g
The recently enacted New York Labor Law § 201-g requires every employer in New York State either (i) to adopt the State Department of Labor’s model sexual harassment prevention policy or (ii) to establish a sexual harassment prevention policy “that meets or exceeds the minimum standards provided by” the New York State Department of Labor’s model sexual harassment prevention policy. These required minimum standards “include a procedure for the . . . investigation of complaints . . . [that] ensure[s] due process for all parties,” including the accused employee.
N.Y. Labor Law § 201-g’s “due process” language draws on the Due Process Clauses of the Fifth Amendment and the Fourth Amendment to the U.S. Constitution. The Fifth Amendment’s Due Process Clause, which applies to the federal government, famously states that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” Likewise, the Fourteenth Amendment’s Due Process Clause, which applies to the 50 states, famously provides that “No state shall . . . deprive any person of life, liberty, or property, without due process of law.”
Exactly What Fair Procedures Are Owed To The Accused Employee In His Or Her Employer’s Internal Investigation Of The Employee For Sexual Harassment?
New York Labor Law § 201-g entitles an accused executive or professional in New York to due process – that is, fair procedures — when his or her employer is internally investigating the executive or professional for alleged sexual harassment. What that due process consists of remains an open question.
To date, the only court decision touching on the issue notes the employer’s position that New York Labor Law § 201-g establishes a “business imperative.”
Two Relevant Sources For Fair Procedures
It’s submitted that there are at least two relevant sources to consider in determining what due process – that is, what fair procedures – an accused employee has a right to in a private sector employer’s internal investigation:
- Decisions of courts of the State of California addressing the rights to due process, or fair procedures, of civil service employees in a state agency’s internal investigation of the employee for alleged misconduct; and
- The due process regulations issued by the U.S. Department of Education establishing fair procedures for sexual harassment investigations at universities and other academic institutions; and
Based on these persuasive California court cases, it’s submitted that in an employer’s internal investigation of an executive or a professional for supposed sexual harassment in New York, the due process afforded, by N.Y. Labor Law § 201-g, to these accused executives and professionals mandates that the employee be accorded certain procedural rights before discipline of the employee becomes effective. At a minimum, these pre-removal safeguards must include notice of the proposed action, the reasons for the proposed action, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the employer initially imposing discipline.
So, too, based on these on-point U.S. Department of Education regulations, it’s submitted that in New York, the due process guaranteed, by N.Y. Labor Law § 201-g, to executives and professionals requires that an employer handling an internal complaint of sexual harassment against an executive or a professional provide the following written notice to the accused employee:
Notice of the allegations potentially constituting sexual harassment, including sufficient information available at the time and with sufficient time to prepare a response. Sufficient information include the identities of the parties involved in the incident(s), the conduct allegedly constituting sexual harassment, and the date(s) and location(s) of the alleged incident(s), if known.
This author regularly represents executives, professionals, supervisors, and managers in New York in all stages of employers’ internal investigations of these professionals for alleged sexual harassment. In these internal investigations of executives or professionals for purported sexual harassment, this author insists, of the employer, that it afford, to the accused executive or professional, among other fair procedures, the above-mentioned processes.
If you are an executive or a professional in the New York City metro area and your employer is internally investigating you for alleged sexual harassment, other unlawful workplace harassment, or other misconduct, call New York City Internal Investigations Employment Lawyer David S. Rich at (347) 941-0760 today.
