NYCCHR’s new guidance on sexual harassment prevention training answers some questions and raises new ones



December 17, 2018

Employment Law Alert

Author(s): Tara E. Daub, Tony Dulgerian, Helena Habib

Recently, the New York City Commission on Human Rights (the “Commission”) released guidance in the form of frequently asked questions (“FAQs”), available here, concerning the requirements of the recently enacted Stop Sexual Harassment in New York City Act (the “Act”). As we previously reported here and here, the Act goes into effect on April 1, 2019, and requires all private employers with 15 or more New York City employees to provide annual anti-sexual harassment training to employees, post anti-sexual harassment notices in the workplace and distribute an anti-sexual harassment factsheet to all new hires, among other things. This alert highlights the main points of the Commission’s new guidance.

Most significantly, the FAQs state the Commission’s position that employers will be required to provide anti-sexual harassment training not only to all NYC employees, but to independent contractors “who have performed work in the furtherance of the business for more than 90 days and more than 80 hours in a calendar year.” The Commission cites no specific language in the Act itself in support of this guidance. Employers have expressed concern that providing training to independent contractors may have other legal implications.

As for training, the Act itself states that “[e]mployers with 15 or more employees shall annually conduct anti-sexual harassment interactive training for all employees, including supervisory and managerial employees, of such employer employed within the city of New York.” There is no language in this section of the Act on training that refers to independent contractors. However, the New York City Human Rights law (“NYCHRL”) does allow for certain defenses when an employer can show that it “[e]stablished and complied with policies, programs and procedures for the prevention and detection of unlawful discriminatory practices by employees, agents and [‘]persons employed[’] as independent contractors.”

The FAQs further state that independent contractors count toward the calculation of the 15-employee minimum that triggers an employer’s obligation to provide training. Under the NYCHRL’s definition of an “employer,” the law states that “natural persons employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers shall be counted as persons in the employ of such employer.”

According to the Commission, employers are not required to train independent contractors who already received training elsewhere, although the Commission did not provide guidance on how an employer can confirm whether an independent contractor received such training.

Aside from this guidance on independent contractors, the FAQs provide the following additional guidance regarding the Act:

  • How to calculate “15 employees”: The FAQs provide that an employer’s obligation to provide training is triggered if it had 15 employees and/or independent contractors at any point during the prior calendar year. Therefore, if an employer currently has 14 employees but had 15 employees ten months ago, it must provide training.
  • Frequency of training: Employees must be trained every calendar year and the Act goes into effect on April 1, 2019. Although this means that employees must complete the first round of training by December 31, 2019, New York City employers should also be mindful that New York State requires employers to provide sexual harassment prevention training to all employees by October 9, 2019, and annually thereafter, as we previously reported here. The guidance does not indicate whether training provided before April 1, 2019 will satisfy the annual training requirement.
  • Model training materials: The Commission acknowledged that New York State also requires employers to provide anti-sexual harassment training to employees. The FAQs state that employers may conduct a single training to comply with both laws. The Commission indicated that it is partnering with the New York State Division of Human Rights and the New York State Department of Labor to create model training materials to comply with both laws.
  • Where to post the notice: Employers must post the anti-sexual harassment notice, in English and in Spanish, in a conspicuous physical location. Employers may also post this notice electronically—such as on a company intranet—if a convenient physical location is not available and an electronic bulletin board is easily accessible to all employees. Electronic posting is also permissible if it is the most effective method of reaching employees.
  • Languages for the notice: The Commission intends to publish the notice in nine other languages. Once the Commission does so, employers may post the notice in the other languages, but must still post the English and Spanish versions.
  • Other requirements for the notice: Employers with multiple work sites must post the notice at all sites. Employers with remote workers may provide notice via e-mail. Employers need not post the notice in color, but may do so in black and white format.
  • When to provide the factsheet to new hires: As for the anti-sexual harassment factsheet, which employers must provide to all new hires, the FAQs clarify that employers must provide the factsheet within the first week of work.

Employers should determine the best time to conduct the anti-sexual harassment training for their employees who work in New York City. For example, an employer may wish to conduct the training between April 1, 2019 and October 9, 2019, so that it can review the Commission’s model training materials in order to comply with the requirements of the New York State and New York City laws. Some employers, on the other hand, may have already conducted the training mandated by New York State—or may decide to conduct such training in the near future—and should retrain New York City employees after April 1, 2019, and within the calendar year, in order to comply with the Act.

In determining whether an employer is legally required to provide this training to certain categories of independent contractors, employers should be cognizant that providing training to independent contractors could potentially raise other legal issues, which employers should discuss with counsel in advance of providing such training.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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