THE DEADLINE APPROACHES! SEXUAL HARASSMENT TRAINING REQUIREMENTS IN NEW YORK STATE

August 23, 2019 UPDATE

Governor Cuomo, on August 12, 2019, signed into law Assembly Bill A8421, which significantly expands New York State sexual harassment and discrimination laws.  These changes are in addition to the significant legislation that New York enacted in 2018 that were originally reported by The Van De Water Law Firm. This article details the revised and most timely deadlines and requirements under New York State and New York City sexual harassment training laws. 

New York Sexual Harassment Training Deadline of October 9, 2019

By October 9, 2019, employers must provide sexual harassment training to all employees located in New York State. Thereafter and upon an ongoing basis, all employers must provide sexual harassment training to all employees each year. Both court decisions and numerous regulations in New York State have made it clear for years that all employers should provide harassment prevention training.  Now it’s the law!

The New York State law:

• Applies to all employers, regardless of their size, who employ anyone in the state of New York.
• Applies to all employees, not just supervisors.
• Requires that the training is provided annually.
• Applies to all contractors who bid on New York State contracts.

The NYC law, entitled the “Stop Sexual Harassment in NYC Act,” applies to all employers with 15 or more employees, and requires annual sexual harassment training for all employees.  Mandatory compliance with that law began on April 1, 2019.

As a matter of course, both the New York State and New York City laws detail specific content that must be addressed in the training. While New York State training content requirements are similar to content requirements in other states, New York City’s law goes beyond the training content that previously has been required in other jurisdictions. For example, the training provided to employees in New York City must:

• Address bystander intervention
• Describe the complaint process available through the NYC Commission on Human Rights, the New York State Division of Human Rights, and the United States Equal Employment Opportunity Commission, and provide employees with those agencies’ contact information

The two tables below detail the obligations and the differences between the New York State and New York City laws regarding:

1. Training Requirements (Table 1)
2. Training Content (Table 2)

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Table 1

Sexual Harassment Training Obligations in New York State

	New York State	New York City
Effective Date and Deadline	Effective October 9, 2018. Deadline of October 9, 2019, to have all employees trained.	Effective April 1, 2019. Deadline of April 1, 2020, to have all employees trained.
Employers and Employees Covered	All employers, regardless of size, must train all employees. According to the final guidance issued by New York State, an “employee” includes all workers, regardless of immigration status. “Employee” also includes exempt or non-exempt employees, part-time workers, seasonal workers, and temporary workers. Minor employees, such as child actors, are required to take sexual harassment training.  However, those employing children under the age of 14 may opt to simplify the training and policy, while still meeting the minimum requirements. Only employees who work or will work in New York State need to be trained. However, if an individual works a portion of their time in New York State, even if they’re based in another state, they must be trained. An agency or any other worker organization (e.g. labor union) may choose to provide training to workers; however, the employer may still be liable for the employee’s conduct and understanding of policies and should train the employee on any nuances and processes specific to the company or industry.	Employers with 15 or more employees must train all employees, who work 90 or more hours per the calendar year, on a full or part-time basis in New York City.
Government Contractors Covered	Beginning on January 1, 2019, all contractors who bid on contracts to provide goods or services to the NY State government or any state agency, where competitive bidding is required, must certify under penalty of perjury that they have a sexual harassment policy and that they provide annual sexual harassment training to all employees, even those outside of the state.  Specifically, the bid must include the following language: “By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing sexual harassment prevention in the workplace and providesannual sexual harassment prevention training to all of its employees.” (State Finance Law, Section 139-L). The New York State Human Rights Law imposes liability on employers for the actions of independent contractors, vendors, or consultants; thus, employers are also encouraged to provide their policy and training to anyone providing services in the workplace, in addition to employees.	While the law doesn’t explicitly require NYC contractors to provide sexual harassment training, they will be required to describe their practices, policies, and procedures “relating to preventing and addressing sexual harassment” as part of existing reporting requirements.
How Often	Employers must provide each employee the training at least once per year. Employers can track completion based on the calendar year, the anniversary of each employee’s start date, or any other date the employer chooses.	Must provide training annually.
New Employees	The NY State final guidance encourages training of new employees as soon as possible, noting that employers may be liable for the actions of employees immediately upon hire. The law requires that employers provide a sexual harassment prevention policy and training on an annual basis to all employees. An employer may choose to deem the training requirement satisfied if a new employee can verify completion through a previous employer or through a temporary help firm.	New employees who work 80 or more hours per year, on a full or part-time basis, in NYC must be trained after 90 days of hire – unless the employee received training within the same annual cycle from a prior employer.
Recordkeeping	Employers are not required to (but are encouraged) to keep a signed employee acknowledgment of having read the policy and a copy of all training records, as these records may be helpful in addressing future complaints or lawsuits.	Employers shall keep a record of all training, including a signed employee acknowledgment, which may be electronic. Employers shall maintain such records for at least three years and such records must be made available for commission inspection upon request.
Interactivity	NY State’s final guidance says that training may be in-person or online, so long as it is “interactive”. Interactivity requires employee participation. Examples of employee participation include: If the training is web-based, and the employee must select the right answer when asked questions at the end. If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner. (Clear Law’s online sexual harassment training allows users to submit questions and Clear Law – or the client – answers the questions promptly.) In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions. Web-based or in-person training that provides a Feedback Survey for employees to turn in after they have completed the training. According to NY State’s guidance, “An individual watching a training video or reading a document only, with no feedback mechanism or interaction, would NOT be considered interactive.”	The training must be “interactive,” which is defined as “participatory.” Online training may suffice if it is interactive.

 

Table 2

Harassment Training Content Requirements in New York State and NYC

	New York State	New York City
Sexual Harassment Definition and Examples	An explanation of sexual harassment consistent with guidance issued by the NY DOL, including examples of conduct that would constitute unlawful sexual harassment.	A description of what sexual harassment is, using examples.
Applicable Laws	Information containing the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment, and a statement that there may be applicable local laws.	An explanation of sexual harassment as a form of unlawful discrimination under local law. A statement that sexual harassment is also a form of unlawful discrimination under state and federal law.
Reporting, External Forums of Adjudication, and Rights of Redress	Information concerning employees’ rights of redress and all available forums for adjudicating complaints.	The training must inform employees of the internal complaint process available to employees through their employer to address sexual harassment claims. It also must describe the complaint process available through the NYC Commission on Human Rights, the New York State Division of Human Rights, and the United States Equal Employment Opportunity Commission, including contact information.
Retaliation	Training on retaliation is not specifically required by New York State law, but the law also notes that anti-retaliation provisions must be included in the employer’s policy. New York’s Human Rights Law prohibits retaliation for employees who file an internal or external complaint, testify, or assist in any investigation.	The prohibition of retaliation, pursuant to subdivision 7 of section 8-107, and examples of protected activity under the law (such as opposing discrimination, filing a complaint, testifying on behalf of someone complaining about discrimination, and assisting in an investigation).
Bystander Intervention	No requirement to address bystander intervention.	Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention.
Supervisors’ Duties	According to the NY State guidance, employers must ensure managers and supervisors, as well as all employees, are aware of the extra requirements and responsibilities for those in managerial/supervisory roles. While employers may provide additional or separate training to supervisors and managers, this language indicates that employers should inform all employees of supervisors’ and managers’ responsibilities for preventing and reporting sexual harassment.	The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.

**Quoting Chart from Clear Law Institute,  New York State and New York City Sexual Harassment Training Laws Michael Johnson, J.D., CEO, Clear Law Institute, August 12, 2019

Required Distribution in Writing of Anti-Harassment Policy and Information Presented in the Employer’s Training Program

According to the 2019 New York State legislation, employers must now provide employees in New York with written notice at the time of their hire and during annual sexual harassment training. The notice must include (1) the employer’s sexual harassment prevention policy and (2) the information presented in the employer’s sexual harassment prevention training program.

Employers must provide the required information in English and in the language identified by each employee as his or her primary language.

The state will publish a model policy in languages other than English (depending on the prevalence of each language in the state). New York employers are not required to provide their policy in another language if the state has not published a template in that language. This requirement to provide notice at the time of hire and during annual training goes into effect immediately upon enactment on August 12, 2019.

Model Training

New York State has already developed a basic model training document that can be followed by employers to provide their employees with training. The State has also created a video of someone reading through the training slides and sample scenarios which can be used as a reference. Nevertheless, the State specifically cautions that simply showing the training video to an employee will not satisfy the State’s minimum training requirements, as this would not be considered “interactive.” Should an employer chooses to use the State’s video to meet its training requirements, it must also:

• Ask questions of employees as part of the program;
• Accommodate questions asked by employees, with answers provided in a timely manner; or
• Require feedback from employees about the training and the materials presented.

According to New York State, during the interactive portion of the training, “employers should be prepared to address questions raised by employees including those specific to their industry, questions about the organization’s reporting process, and questions about how hypothetical cases would be handled.”  Thus, for many employers, the State’s interactivity requirement will be challenging.  Many employers may not have anyone with the appropriate level of expertise to facilitate the harassment training and answer questions about harassment issues.  An employer who provides the training with an unqualified facilitator runs the risk of providing non-compliant training and having the facilitator give inaccurate guidance.

Most employers likely will turn to a third party with expertise in training on sexual harassment prevention, such as The Van De Water Law Firm. Indeed, the New York City law explicitly states that its model training is designed to be a minimum threshold. Many employers will likely and should in fact turn to expert providers of sexual harassment training:

• To provide employees with “best-in-class” instruction that utilizes cutting-edge instructional design principles to help improve employees’ understanding of the principles taught.
• To be able to answer questions from users (as required to meet the “interactivity” requirement). Users of Clear Law’s online training can ask questions and have those questions answered within two business days by Clear Law or a client official.
• To provide comprehensive instruction on the topic. For example, the NYC law requires employers who will use its model training to separately instruct all employees on the employer’s internal complaint process for addressing sexual harassment claims.
• To be able to efficiently track who has and who has not completed the training each year, which can be handled by a modern Learning Management System.
• To have their online training provider handle all technical support calls from their employees.
• To ensure that the training complies with all 50 states’ requirements, not just the requirements of the State of New York and New York City.
• To ensure that the training provides legally accurate guidance. If an employer were to provide in-person training following New York State’s training script, for example, the trainer may not have the expertise to facilitate the training and accurately answer questions.

As always, we at The Van De Water Law Firm are your local resource for all your Company’s sexual harassment questions and provide detailed and fully compliant sexual harassment training that strictly complies with both the New York State and City requirements.  Call now for a free evaluation and consultation at (631)923-1314, or email us at [email protected].  You can also visit us on the web at https://chrisvandewater.com/