New York recently extended its protections of the New York City Human Rights Law to non-employees, including contractors and freelancers, following in the footsteps of New York State, which recently amended its Human Rights Law in a similar manner. The new law will go into effect in January 2020. We wanted to highlight an important development that arises out of the change in this law.

Employers Must Now Train Contractors

The NYC Commission on Human Rights earlier this year asserted that the NYC law mandating sexual harassment training required employers to train non-employee contractors. It later softened that position because the law did not expressly mandate such training, opting instead to strongly encourage employers to train on-site contractors. This reversal tracked with the New York State Department of Labor’s position that the New York State Human Rights Law did not require employers to train independent contractors. Given the recent amendment to the NYC law, however, we expect the Commission to revisit this position regarding mandatory training of contractors, regardless of the NYSDOL’s position on this issue.

In particular, we expect that the Commission will require New York City employers to train contractors where they perform services for more than 80 hours in a calendar year and for at least 90 days. This would track with its current guidance strongly encouraging NYC employers to train contractors who provide this level of servicing. It also tracks with its other guidance requiring training for temporary and part time employees, interns and for certain out-of-state employees who meet the 80 hour/90 day servicing level threshold.

Employers must also take note regarding how the Commission currently interprets the training provision’s 15-employee coverage threshold. It currently takes the position that employers must count (i) any contractor, regardless of the number of days and hours its services the employer; and (ii) all employees, even those based outside of New York City, which as a result, will extend the training requirements to a greater number of small employers and to a greater number of employers with a small part of their operation in NYC.

This is a significant development as it will require New York City employers covered by NYC’s sexual harassment training law to extend out their training programs starting in 2020. It will also impact staffing firms and other employers who lease employees or provide consultants to an employer-client. We will be watching closely to see the Commissions’ official position on this issue, which we expect will be forthcoming later this fall. Employers, however, should start thinking right now about how to modify their existing training programs to meet these expanding requirements.