Now that the laws, guidance and model materials are effective and finalized, New York employers, both inside and outside of New York City, should set their sights on compliance with the New York State anti–sexual harassment law (the “State Law”) and the Stop Sexual Harassment in New York City Act (the “NYC Law”). Although these laws overlap in many respects, there are several key differences that employers should keep in mind. This alert summarizes the requirements of these laws, along with the recent guidance issued in connection with the NYC Law.
New York State Anti–Sexual Harassment Law
The State Law, which went into effect on October 9, 2018, requires New York employers to adopt and distribute to all employees an anti–sexual harassment policy and to conduct annual anti–sexual harassment training. The sexual harassment prevention policy must include, among other things, a strict prohibition against sexual harassment, examples of prohibited conduct, information concerning the statutory provisions prohibiting sexual harassment, a standard complaint form, the employer’s complaint procedure, information regarding employees’ rights of redress and all available administrative and judicial forums in which to raise sexual harassment claims.
The annual sexual harassment prevention training, required under the State Law, must be conducted by October 9, 2019, and annually thereafter. The training must also comply with certain minimum standards, which are described in the statute. Most significantly, the training must be “interactive.” Per the guidance issued in connection with the State Law, using a live trainer is a best practice for ensuring effective and engaging anti–sexual harassment training.
New York City Anti–Sexual Harassment Law
Similarly, the NYC Law requires all private employers with 15 or more New York City employees to conduct annual anti–sexual harassment training, post an anti–sexual harassment notice—in English and in Spanish—and provide new hires with an anti–sexual harassment factsheet. The training must be “interactive,” as set forth in the NYC Law and relevant guidance, and must be completed by December 31, 2019, and annually thereafter. The effective date of the posting and notice requirements was September 6, 2018.
The New York City Commission on Human Rights (the “Commission”) recently released its model anti–sexual harassment training module (“Model Training Module”), available here, and additional guidance in the form of Frequently Asked Questions (“FAQs”), available here, to further describe the training requirements set forth in the NYC Law. According to the new FAQs, employers need not use the Model Training Module but, instead, can develop their own training materials or hire a third party to provide the anti–sexual harassment training, so long as the training meets the requirements set forth in the statute. Also, in contrast to guidance that was previously issued by the Commission, the new FAQs provide that employers do not need to train independent contractors. Rather, the Commission “strongly advise[s]” employers to train independent contractors that “are working on-site at an employer’s workplace, are interacting with the employer’s staff and are anticipated to work more than 80 hours in a calendar year AND for at least 90 days.”
The new FAQs also clarify that employees who already received anti–sexual harassment training that meets the minimum requirements set forth in the NYC Law before April 1, 2019, but at some point in 2019, do not need to receive the training again until 2020. Employers should remember, however, that employees must receive the anti–sexual harassment training every year (which can be based on the calendar year, anniversary of each employee’s start date or any other date the employer chooses) to comply with the NYC Law’s requirements.
According to the new FAQs, the Model Training Module complies with both the NYC Law and the State Law. That being said, the deadlines to complete the training in 2019 under each law is different. As mentioned above, the NYC Law requires employers to provide employees with anti–sexual harassment training at least once in 2019 (i.e., before December 31, 2019). The State Law, on the other hand, requires employers to complete the training by October 9, 2019. In subsequent years, employers must train employees on an annual basis to comply with both laws, which may be based on the calendar year, anniversary of each employee’s start date or any other date the employer chooses. Therefore, employers may want to conduct their training before October 9, 2019, in order to satisfy both the New York City and New York State training requirements.
Employers should begin determining when and the method by which they will provide anti–sexual harassment trainings to all of their employees to ensure compliance with these laws. Although the training materials created by the Commission may be convenient, they cannot be tailored to suit a particular employer’s needs. For example, the Model Training Module does not include information about the employer’s specific complaint procedure, nor can an employer add such information in the module. The Model Training Module also includes non-mandatory content that some employers may prefer to exclude from the training as inapplicable or unnecessary. Finally, if feasible, there can be benefits to providing live, interactive training where employees can ask questions and engage in a meaningful discussion with the presenter regarding these issues.
- For additional information regarding the specific requirements set forth in the State Law, see our previous alerts here, here and here.
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- More information regarding the NYC Law’s requirements can be found in our previous alerts here, here and here.
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- As we previously reported here, however, providing training to independent contractors could potentially raise other legal issues, which employers should discuss with counsel in advance of providing such training.
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