New York State Sexual Harassment Training Mandate

A new law in NYS for all Employers (any person or corporation employing one or more employees)

Mandated Employer Policy:

Sexual Harassment Policies MUST BE PROVIDED IN WRITING and clearly state and include:

  • Prohibition of sexual harassment and provide an example of prohibited conduct.
  • Information concerning Federal and State sexual harassment laws and mention there may be applicable local laws.
  • Information to employees of their rights to redress and available forums for adjudicating claims administratively and judicially.
  • A statement indicating that sexual harassment is a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory management who knowingly allow such behavior to continue.
  • A statement indicating that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceedings is unlawful.
  • A standard complaint form.
  • A procedure for the timely and confidential investigation of complaints including due process for all parties.

Mandated Training:

Interactive training must be provided for new hires (within 30 days) and annually.

Training must include:

  • An explanation of what sexual harassment is.
  • Examples of sexual harassment.
  • Information concerning the federal and state laws concerning sexual harassment and remedies available to victims.
  • Information concerning employees’ rights of redress and forums for complaints.
  • Information addressing conduct by supervisors and any additional responsibilities for such supervisors.

Audits:

There is no record keeping requirement under the law, but employers should track their employees’ attendance at training.  This type of evidence is helpful in the event an employer finds itself defending against allegations of sexual harassment.  The Act does not specify what fines or penalties, if any, may be imposed on employers who fail to meet this mandate.

Others covered under this new law:

The law also offers protection to non-employees such as vendors, contractors, subcontractors, consultants, and  etc. from sexual harassment.  This may leave an employer open to additional liability.

Nondisclosure and Arbitration:

NYS law prohibits nondisclosure clauses in any settlement or other agreement regarding sexual harassment unless the condition of confidentiality is the complainant’s preference.  NYS also prohibits employers from requiring employees to arbitrate sexual harassment claims unless the arbitration agreement is part of a collective bargaining agreement.

The NYS Division of Human rights has produced a model sexual harassment prevention guidance and sexual harassment prevention policy.  Employers must adopt this policy or adopt an equivalent one.  The Division of Human Rights has created a model training program still in draft form.

Table 1

Sexual Harassment Training Obligations in New York State

New York StateNew York City
Effective Date and DeadlineEffective October 9, 2018. Deadline of January 1, 2019, to have all employees trained.Effective April 1, 2019. Deadline of April 1, 2020, to have all employees trained.
Employers and Employees CoveredAll employers, regardless of size, must train all employees.

According to draft guidance issued by New York State, “all employees” includes all part-time employees, with no minimum hours requirement. Indeed, according to the State’s guidance, even if an employee just works for one day, or if the employee is based out of state but works for just one day in New York, that employee is covered by the training requirement.

Employers with 15 or more employees must train all employees, who work 90 or more hours per calendar year, on a full or part-time basis in New York City.
Contractors CoveredBeginning on January 1, 2019, all contractors who bid on NY State contracts must certify under penalty of perjury that they have provided annual sexual harassment training to all employees, even those outside of the state.While the law doesn’t explicitly require NYC contractors to provide sexual harassment training, they will be required to describe their practices, policies, and procedures “relating to preventing and addressing sexual harassment” as part of existing reporting requirements.
How OftenMust provide training annually. Employers can track completion based on the calendar year, the anniversary of each employee’s start date, or any other date the employer chooses.Must provide training annually.
New EmployeesThe NY State draft guidance says that new employees must be trained within 30 days of their start date.New employees who work 80 or more hours per year, on a full or part-time basis, in NYC must be trained after 90 days of hire unless the employee received training within the same annual cycle from a prior employer.
RecordkeepingNone specifically required.Employers shall keep a record of all training, including a signed employee acknowledgment, which may be electronic. Employers shall maintain such records for at least three years and such records must be made available for commission inspection upon request.
InteractivityThe training must be “interactive.” NY State’s draft guidance says that “interactive” means that the training must require some form of employee participation. According to the State’s model training document, the training should include as many of the following elements as possible:

  • Include a live trainer made available during the session to answer questions
  • Be web-based with questions asked of employees as part of the program
  • Accommodate questions asked by employees, and/or
  • Require feedback from employees about the training and the materials presented
The training must be “interactive,” which is defined as “participatory.” Online training may suffice if it is interactive.

Table 2

Harassment Training Content Requirements in New York State and NYC

New York StateNew York City
Sexual Harassment Definition and ExamplesAn explanation of sexual harassment consistent with guidance issued by the NY DOL. It also must include examples of conduct that would constitute unlawful sexual harassment.A description of what sexual harassment is, using examples.
Applicable LawsInformation containing the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment.An explanation of sexual harassment as a form of unlawful discrimination under the local law. A statement that sexual harassment is also a form of unlawful discrimination under state and federal law.
Reporting, External Forums of Adjudication, and Rights of RedressInformation concerning employees’ rights of redress and all available forums for adjudicating complaints.The training must inform employees of the internal complaint process available to employees through their employer to address sexual harassment claims. It also must describe 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.
 RetaliationTraining on retaliation is not specifically required by the state law, but the law also notes that anti-retaliation provisions must be included in the employer’s policy.The prohibition of retaliation, pursuant to subdivision 7 of section 8-107, and examples of protected activity under the law (such as opposing discrimination, filing a complaint, testifying on behalf of someone complaining about discrimination, and assisting in an investigation).
Bystander InterventionNo requirement to address bystander intervention.Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention.
Supervisors’ DutiesAddress conduct by supervisors and any additional responsibilities for such supervisors.The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.

This information was sourced from the Clear Law Institute