All employers in New York State must provide sexual harassment training for all employees and supervisors, making New York the fourth state to statutorily mandate anti-harassment training for managers, and the first state to require such training for all employees. The New York law is effective on October 9, 2018.
What are the subjects that must be covered?:
The training must:
(i) be interactive;
(ii) include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
(iii) include examples of conduct that would constitute unlawful sexual harassment;
(iv) include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
(v) include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
(vi) include information addressing conduct by supervisors and any additional responsibilities for such supervisors.
What are the requirements for training format and delivery?
Training for all current employees must be given within a year of the effective date of the legislation (or not later than October 9, 2019), and every year afterward. After then, the annual training may be based on the calendar year, anniversary of each employee’s start date, or any other date the employer chooses.
If employees have already received training in 2018, but it did NOT meet all new requirements, employers need only provide supplemental training to ensure all requirements are met.
New York State law requires all sexual harassment training to be interactive. Training may be online, so long as it is interactive. Examples of employee participation include:
If the training is web-based, it has questions at the end of a section and the employee must select the right answer;
If the training is web-based, the employees have an option to submit a question online and receive an answer immediately or in a timely manner;
In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions;
Web-based or in-person trainings that provide a Feedback Survey for employees to turn in after they have completed the training
Note that an individual watching a training video or reading a document only, with no feedback mechanism or interaction, would NOT be considered interactive.
The NY Division on Civil Rights advises that a live trainer is the best practice for effective and engaging trainings. Live trainers may appear in person or via phone, webinar, video conference, etc.
NY law does not prescribe how long the training must be, but it must cover all of the required subjects. In planning for anti-harassment training, you should note that the model training provided by the federal Equal Employment Opportunity Commission is 4 hours for managers and 3 hours for others; California requires 2 hours for managers and, as of 2020, one hour for others; as of 2019, Delaware mandates 90 minutes for all employees; and, Connecticut requires 2 hours for managers.
Employers should provide employees with training in the language spoken by their employees. The NY Division on Civil Rights will provide model materials in Spanish, Chinese, Korean, Bengali, Russian, Italian, Polish and Haitian-Creole, and may add more languages in the future. When a template training is not available from the State in an employee’s primary language, the employer may provide that employee an English-language version.
Are contractors, seasonal workers, and temporary employees included?
“Employee” includes all workers, regardless of immigration status. This means exempt or non-exempt employees, part-time workers, seasonal workers, and temporary workers.
Independent contractors and consultants are not included. However, since NY law imposes liability on the employer for their actions, the NY Division on Civil Rights encourages employers to provide their policy and training to anyone providing services in the workplace.
When do I have to train new hires?
Since employers may be liable for the actions of employees immediately upon hire, the State encourages training as soon as possible. Employers should distribute the policy to employees prior to commencing work and should have it posted.
An employer may choose to deem the training requirement satisfied if a new employee can verify completion through a previous employer or through a temporary help firm.
An agency or any other worker organization (e.g. labor union) may choose to provide training to workers, however, the employer may still be liable for the employee’s conduct and understanding of policies and should train the employee on any nuances and processes specific to the company or industry.
What training records are required?
No signed acknowledgement of having read the policy is required, but employers are encouraged to keep a signed acknowledgement and to keep a copy of training records. These records may be helpful in addressing any future complaints or lawsuits.
What do I need to do today to ensure our company is in compliance with New York law?
Start thinking today about blocking out the dates in 2019 by which all training must be completed. Avoid seasonal rushes, quarter-ends, popular vacation periods, holidays, and other times when training is difficult to schedule.
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One-on-one sensitivity training is an important tool in helping those employees for whom other training has not been effective and it is often a requirement after a workplace investigation.
Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.