February 21, 2019
Over the last year, many states and localities have enacted new laws responding to the #MeToo movement, requiring employers to increase their vigilance in preventing and addressing sexual harassment in the workplace. For example, as of October 9, 2018, all New York State employers with even just one employee are required to provide annual sexual harassment prevention training that complies with minimum guidelines set by the State. California, Connecticut and New York City are some of the other states and localities now requiring employers of a certain size to provide such training as well. Managers of co-working locations – and the companies that use them – should pay close attention to this trend.
While these more stringent laws have already impacted the way many employers handle such issues, the consequences for harassment that occurs outside of the traditional workplace or traditional employment relationships can still be unclear. The rapid rise in the use of collective and co-working spaces as an alternative to working from home or traditional office environments raises new questions, complex issues and unique challenges regarding sexual harassment in the workplace, and how to best prevent and address it.
Employers would certainly be liable for harassment amongst their own employees in a co-working space (individuals may be personally liable for such harassing behavior as well), but what if an employee alleges harassment by a fellow worker in the co-working space who is part of a different company? What if an employee alleges harassment by a vendor, an independent contractor or even a visitor of another company in the co-working space?
Although the relevant legal protections have yet to directly address this new and evolving workplace model, employers that utilize co-working spaces could be liable for harassment perpetrated by non-employees as well. Moreover, certain state and local laws, including New York State, New York City and California, hold employers accountable for claims of sexual harassment even if they have just one employee – capturing the very start-ups and small companies that tend to utilize co-working spaces.
Under federal law as well as the laws of many states and localities, employers can be liable for sexual harassment of their employees that is perpetrated by third parties. Such third parties could include other workers in a co-working space, despite not being employed by the company, and could well extend to vendors, independent contractors and even visitors. This is because, under Title VII of the Civil Rights Act of 1964, an employer may be held responsible for the acts of non-employees, where it knew or should have known of the harassing conduct and failed to take immediate and appropriate corrective action. Although a company is more likely to be held liable for the conduct of a non-employee where it exercises a degree of control over the harassing individual (such as a company contractor), the fact that harassment in a co-working space is taking place inside the company’s “workplace” could weigh in favor of holding the company responsible.
So, what should an employer using a co-working space do if such an allegation comes to its attention?
As a preliminary matter, the employer should learn the co-working space’s anti-harassment policies before it becomes a member or tenant, in order to ensure that the co-working space policy aligns with the environment the employer seeks to cultivate for its employees.
If an employer utilizing a co-working space does receive a complaint of harassment, it should consider taking appropriate corrective action, even if the offender or complainant is not under its control. Employers would be well advised to seek legal counsel before taking steps to respond in a complex co-working environment.
While every incident will be unique, generally the first course of action would be to learn more about what happened and obtain the views of the person reporting the incident. Confidentiality may not be possible if the employer is to respond to the complaint. The employer should be both mindful of the impact of elevating the complaint and sensitive to the rights of the people involved.
Generally, the second course of action would be for the employer to report the incident to the co-working space management and determine whether the complained-of behavior violates the policies for those who use the co-working space. The employer may also seek access to any evidence of the alleged harassment from the co-working space management, such as an overhead video of the incident.
Another option may be to allow the employee who reported the harassment to work from a different co-working location, but this would only be appropriate if he or she is amenable to such a change and it would not negatively impact the employee’s work. The safety and comfort of the employee who reported the harassment should be a priority. The employer should be careful not to take any steps that could be experienced by the employee as retaliatory.
Lastly, the employer may elect to speak directly with the accused individual or his or her employer, but this may become thorny where the employer has no control or authority over the alleged harasser. Again, employers that receive a complaint of harassment would be wise to consult with legal counsel promptly for guidance concerning rights, options and the safest way forward, before attempting to navigate these complex circumstances.
As the modern workforce evolves, employment laws that have been around for decades may struggle to keep up. But with the current trend toward stronger protections against sexual harassment and discrimination in the workplace, employers should be proactive in eradicating any sexual harassment, discrimination or retaliation impacting their employees, even in a non-traditional work setting.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney Jill Kahn Marshall who counsels both companies and individuals on employment matters (including best practices, claims of harassment and discrimination in the workplace, employment and separation agreements, and employment litigation). Ms. Marshall is admitted to practice law in New York and Massachusetts. Attorney Advertising.