The New York anti-harassment training mandate: a closer look10.19.18
There can be no doubt about the recent increased cultural and media focus on issues of sexual harassment which prompted a wave of “Me Too” testimonials about sexual harassment or assault. Those testimonials prompted many to go public with allegations about inappropriate sexual behavior across multiple industries. Many sectors in the spotlight have been impacted, from Charlie Rose and Matt Lauer in news, Sen. Al Franken and Justice Brett Kavanaugh in politics, to Harvey Weinstein and Kevin Spacey in entertainment. As a result, several states have made sexual harassment a legislative priority.
Earlier this year, New York passed legislation that made it one of a handful of states to require that all employers, regardless of size, adopt a sexual harassment policy and provide annual anti-harassment training to their employees.
The state’s Department of Labor published an eight-page model policy over the summer, encouraging employers to either adopt the model guidelines or implement a policy that meets or exceeds the guidelines by Oct. 9 of this year.
With that deadline in the rearview mirror, the next key deadline for employers is developing an annual training program for employees that tracks the new sexual harassment guidelines. The first training must be completed by Oct. 9, 2019.
Like the model policy, employers may use the model training published by the state, or alternatively, create their own training if it meets or exceeds the following minimum standards. The training must:
- be interactive;
- include an explanation of sexual harassment consistent with the state’s guidelines;
- include examples of conduct that would constitute unlawful sexual harassment;
- include information on relevant state laws 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.
These new training guidelines have prompted a number of compliance inquiries. The following summary provides an analysis of key questions that will help employers of all sizes navigate these new guidelines.
Q: Who is required to receive training?
A: This training is only required for employees that work a portion of their time in the state of New York. If you have employees that work in other states and never work within the state, they do not have to take part in the training. The state, however, does not specify what a “portion” means in terms of work time, so it’s important to ensure that workers who work in New York each year take part in the training. The requirement covers all workers, including exempt or non-exempt employees, part-time workers, seasonal workers, and temporary workers.
Q: We just finished anti-harassment training. Does that mean we are good for this year?
A: It depends. If your training meets or exceeds the state’s guidelines, then no further training for this year is necessary. If not, then a new round of training will be required before Oct. 9, 2019. Note that all employees will be required to re-take the training annually moving forward. This annual requirement can be based on the calendar year, the anniversary of each employee’s start date, or any other method an employer chooses.
Q: How quickly must new employees be trained?
A: New hires must complete the anti-harassment training “as soon as possible,” though no definite timeline is provided. We recommend incorporating the new anti-harassment training guidelines into a new hire program at this time.
New York City has passed additional requirements for an employer’s anti-harassment training, taking effect in April of 2019. Additional requirements for NYC employers will include the implementation and maintenance of employee
Q: What does “interactive” mean exactly?
A: There must be a mechanism that allows employees to offer feedback or interact with the presentation. Examples include:
- a quiz after a training section (if web-based, it should require employees to answer questions correctly);
- an option of submitting questions online and receiving timely answers;
- live training sessions where the presenter makes time for questions; and
- providing a survey for employees to offer feedback.
Requiring that employees merely watch a video or read a document with no opportunity for feedback or interaction is not compliant.
Q: So, the training doesn’t require an in-person trainer, right?
A: While the state says it is a best practice for effective and engaging trainings, a live trainer is not specifically required. The training can also be delivered by third-party vendors or existing employees or managers, as long as it meets or exceeds the state’s minimum training standards. No certification is required and the state does not currently certify or license training providers.
Q: Do we have to pay workers for the time spent in training?
A: As a general rule, employer-provided training time is compensable time under the Fair Labor Standards Act (“FLSA”). There is no minimum number of training hours required – only that the training either meet or exceed the state’s guidelines.
Q: What if our existing policy fails to comply with the new law?
A: It is unclear at this time what enforcement actions and penalties could arise from a violation of the statute. What we do know is that a violation of any provision of the Labor Code, including the recently enacted law governing sexual harassment prevention in the workplace, may result in various fines and criminal penalties.
Thank you to Connor Dugosh for his assistance in preparing this article.