How to Comply with NYS and NYC’s Anti-Sexual Harassment Training Requirements
Last year, both New York State and New York City enacted several significant measures regarding sexual harassment in the workplace. At the state level, the labor law was amended to require the Department of Labor and Division of Human Rights to collaborate in developing both a model sexual harassment prevention policy and a model sexual harassment prevention training program for use by employers in combatting sexual harassment in the workplace.
All New York employers are required either to adopt the model policy and training program or to establish their own policy and training program that equals or exceeds the minimum standards that the two agencies develop. Employers will be required to distribute a harassment policy in writing to employees, and to provide sexual harassment training to all employees on at least an annual basis.
At the city level, last May, Mayor Bill de Blasio signed into law the Stop Sexual Harassment in NYC Act, which also addresses and is intended to prevent sexual harassment in the workplace. Effective April 1, 2019, all New York City employers with 15 or more employees (including interns) are required to conduct annual anti-sexual harassment training for all employees, including supervisory and managerial employees, as well as part-time and seasonal employees.
While there are many similarities between the state and city law requirements, one notable difference is that employers in New York City have until Dec. 31, 2019, to comply with the city law and New York State imposes an Oct. 9 deadline for providing anti-harassment training to all employees. Another difference is that NY State has no minimum employee requirement, meaning that all employers in NYC and NY State, regardless of size, will have to complete annual training.
The city has issued an online training module and FAQs on the anti-harassment law. The good news is that although New York State has separate training requirements, New York City’s Commission on Human Rights training also meets the state’s requirements.
Model Sexual Harassment Training
The city’s online training module, which takes about 45 minutes to complete, includes information on the following topics:
- An explanation of sexual harassment, as well as gender, gender identity and expression, and sexual orientation;
- Internal and external complaint procedures;
- The prohibition on retaliating against employees who raise complaints;
- Bystander intervention; and
- The responsibilities of supervisory and managerial employees to prevent sexual harassment and retaliation, including measures to appropriately address sexual harassment complaints.
To satisfy the requirement that the training be interactive, individuals who take the city’s online training must answer several questions based on various hypotheticals used throughout the training program. After completing the training, individuals can print or save a certificate of completion.
Of course, the city’s guidance also makes clear that employers may develop their own training or use an outside party to provide the required training as long as it satisfies the minimum standards set forth by the city and state. Those minimum standards for training must:
- Be interactive;
- Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
- Include examples of conduct that would constitute unlawful sexual harassment;
- Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
- Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
- Include information addressing conduct by supervisors and any additional responsibilities for such supervisors.
The city’s Commission on Human Rights offers the online training in English or Spanish. Access to the training module can be found at https://www1.nyc.gov/site/cchr/law/sexual-harassment-training.page.
The city has also provided answers to frequently asked questions (FAQs) about the Stop Sexual Harassment in NYC Act. The FAQs make clear that employers are required to train employees each calendar year. Among other things, the FAQs state that employers must satisfy the initial training requirement by Dec. 31, 2019.
This date is noteworthy because the statutory language doesn’t establish a deadline for employers to conduct the first annual training, except to state that the training must be provided annually. Moreover, while the statute provides that new employees be trained after 90 days of initial hire, the FAQs suggest that new employees be trained as soon as possible because employers may be liable for sexual harassment by new employees immediately upon hire. The FAQs also indicate, however, that employees who received anti-harassment training that satisfies the city’s requirements at any point in 2019 aren’t required to receive training until the next annual training cycle.
The following are some highlights from the FAQs:
- Independent contractors aren’t required to be trained, though the city encourages training such individuals who perform work in furtherance of the business and who work more than 80 hours in a calendar year and for at least 90 days;
- Employers are required to maintain records of all trainings for at least three years. This record may be a certificate or a signed employee acknowledgement, and may be paper or electronic;
- If an employer uses the city’s model training and has multiple employees taking the training at once, the employer must keep an independent record of who has taken the training and when the training was given. This requirement can be satisfied by using a sign in sheet that employees sign and date. Employers are responsible for collecting certificates of completion and, according to the FAQs, the Commission won’t retain any records of who completes the training;
- Employees who were trained at a different employer during the calendar year needn’t be retrained. But the FAQs suggest that if an employee isn’t able to provide documentation that he or she has completed training, employers should have the employee retrained; and
- If an employer requires their employees to take the training outside of their regular work hours–for example, on their personal phones or laptops before the start of a shift–they must be paid for their time.
Although employers have until the end of the year to comply with the training requirements, it’s prudent for employers who haven’t already done so to plan for meeting their training obligations, particularly given the New York State training requirements, which require compliance by Oct. 1, 2019.
Additional NYC Requirements
It’s important to note that under the Stop Sexual Harassment in NYC Act, all employers in the city are required to conspicuously display anti-sexual harassment rights and responsibilities notices in both English and Spanish, and distribute a factsheet to individual employees at the time of hire which may be included in an employee handbook.
The legal notice in both English and Spanish, as well as the factsheet in various languages, can be found at https://www1.nyc.gov/site/cchr/law/sexual-harassment-factsheets-posters.page.