As of April 1, 2019, sexual harassment prevention training has become fully ingrained in both New York State and City law. As noted in past posts, just this past October, the State of New York mandated that all employers in New York State must either adopt or develop a sexual harassment policy that meets certain requirements, including the requirement that all employees engage in annual, interactive anti-harassment training. New York City has also implemented its own anti-sexual harassment legislation. Under the “Stop Sexual Harassment in NYC Act,” the New York City Commission on Human Rights (the “NYCCHR”) has mandated that, as of September 6, 2018, all NYC employers are required conspicuously post a notice regarding sexual harassment and reporting options, in both English and Spanish, and distribute a mandatory fact sheet regarding sexual harassment to all new hires.
Most notably under the new NYC law, effective April 1, 2019, all NYC employers with at least 15 employees are also now required to conduct annual, interactive sexual harassment training. To facilitate employers in implementing the NYC law, the NYCCHR has developed and recently released on its website an online training program that meets the training requirements mandated under the NYC law. Employers may choose to use NYCCHR’s model training or develop their own anti-sexual harassment training, assuming it includes all the required elements. Noteworthy elements of such training must include:
- 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;
- A description and examples of what sexual harassment is;
- Any internal complaint process available to employees by employer to address claims of sexual harassment;
- 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;
- The prohibition of retaliation, in addition to sexual harassment, and relevant examples of such;
- Materials regarding bystander intervention; and
- Specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and methods to properly address such situations.
Employers must provide this training to any NYC employee who works more than 80 hours in a calendar year and for at least 90 days, including independent contractors who have performed work in furtherance of the business for more than 90 days and more than 80 hours in the calendar year and any employees who work a portion of their time in NYC or interact with employees in NYC, even if they are based elsewhere.
The NYCCHR has partnered with the New York State Division of Human Rights and the New York State Department of Labor in developing the online training. In doing so, the NYCCHR has ensured that their online training meets the training requirements under both the NYC and NYS anti-sexual harassment laws. Note, however, that unlike the New York State anti-sexual harassment training requirements, the NYC law requires that employers keep a record of all trainings, including a signed employee acknowledgment for at least three years.
Employers should be diligent in ensuring they are in compliance with all requirements of both the New York State and City anti-sexual harassment laws. Steps employers should take to ensure compliance with New York anti-sexual harassment laws include:
- Applicability. Consider how many employees were employed by employer at any point within the prior calendar year – If 15 or more individuals were employed, the employer is subject to the requirements of the NYC law in addition to the NYS law.
- Training Program. Decide whether to use the model online training provided by the NYCCHR, or to develop an employer-specific anti-sexual harassment training. Employers may choose to use a third-party vendor or organization to implement the training. Employers should always review third-party training to ensure that it meets or exceeds the minimum requirements under the NYC law.
- Interactive Training. Certify that the training utilizes participatory training. While the training does not need to be performed by an in-person instructor, it must be conducted in a manner in which the employee is engaged in trainer-trainee interaction, through the use of audio-visuals, or via some other interactive computer or online training program.
- Record-Keeping. Once an employer administers anti-sexual harassment training under the NYC law, they must be certain to maintain accurate records of such training, as well as signed employee acknowledgments, for at least three years following. The NYCCHR has the right to request such records at any point therein.
- Required Notice. Ensure that the anti-sexual harassment notice is posted in a conspicuous location, accessible to all employees. The notice must be posted in English and Spanish, but the NYCCHR offers the notice in nine additional languages if the employer finds such other postings useful to employees.
- Required Fact Sheet. Distribute the sexual harassment act sheet to all new employees no later than the end of the employees’ first week of employment. The fact sheet may be distributed in the employee handbook or with other on-boarding materials, by any print or electronic means.
- New York State Requirements. Though the NYCCHR has ensured their online training complies with both NYC and NYS training requirements, note that the NYC law is narrower in application than the NYS law. Unlike the NYC law that only applies to employers with a specified number of employees in NYC, the NYS anti-sexual harassment requirements apply to all employers in New York State, regardless of the number of individuals employed. Even if employers do not need to comply with the NYC law, they should review their policies to ensure NYS anti-sexual harassment compliance.
For more information regarding NYC anti-sexual harassment training requirements, FAQs may be found here. Hogan Lovells’ employment attorneys also have significant experience crafting policies and providing sexual harassment training in New York, and are available to help employers take the steps necessary to comply with New York’s new requirements.