If You Do Any Work In NY State, You Must Train Employees About Sexual Harassment

New York employers and those out-of-state organizations who just sometimes have employees working in the Empire State have until October 9 to provide New York’s new mandatory sexual harassment training.

The law requires both employers based in New York and those based elsewhere if they have employees who do any work at all in the state to provide specific, interactive sexual harassment prevention training to all employees. Unlike a similar New York City law that applies to employers with 15 or more employees, the state’s mandate applies to New York employers of all sizes.

This article details the state’s training requirements, explains what New York employers can do to prepare for the impending deadline, and notes the consequences of noncompliance.

Who must be trained? — All employees, including part-time, seasonal, and temporary workers. Training must also be provided to workers who work in New York only a portion of the time, according to the state’s FAQs. Employees must be paid for time spent training. While independent contractors do not have to be trained, the state encourages training for anyone providing services in the workplace.

Timing – All employees must be trained by October 9. Thereafter, training must be provided annually. According to the FAQs, new hires should be trained “as soon as possible.” Unlike other states such as California and Connecticut, there’s no requirement for the length of a training program (i.e., training programs need not last any particular period of time, such as one hour).

Content — Training must include:

  • A definition of sexual harassment that is consistent with guidance issued by the state’s Department of Labor,
  • Examples of unlawful sexual harassment,
  • An explanation of the federal and state laws concerning sexual harassment and the remedies available to victims,
  • A description of employees’ rights of redress and all available forums for adjudicating complaints, and
  • Information addressing conduct by supervisors and any additional responsibilities for such supervisors.

Type of training — Training must be “interactive.” The following are examples of interactive training:

  • Web-based training that includes questions where participants must choose the correct answer;
  • Web-based training where participants have an option to submit questions and receive answers immediately or in a timely manner
  • Live or in-person training where the presenter asks participants questions or provides an opportunity for questions throughout the training, or
  • Web-based or in-person training that provides a feedback survey that participants must complete.

The FAQs specifically state that watching a training video or reading a document, with no opportunity for feedback or interaction, is not sufficient.

First language requirement — Employers are required to provide training and the policy in the “language spoken by their employees.” The state has released model training videos and templates in several languages. The FAQs further clarify that if model training is not available in the employee’s primary language, the English version will be sufficient.

Distribution of policy and training materials — Pursuant to a newly enacted law, employers are now required to distribute at every annual sexual harassment prevention training a notice containing the employer’s sexual harassment policy, as well as “the information presented” at the sexual harassment training.

No guidance has been provided on what constitutes “information presented,” but if a PowerPoint presentation is shown during the training, a copy of the deck might suffice.

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Alternatively, the state previously published a notice/poster referencing the employer’s policy and complaint form. This may also be the “notice” referred to in the law. Hopefully the state will provide guidance on this point. The notice must be provided in English and the employee’s primary language.

Prior training qualifies — If an employee has received compliant training from a prior employer within the year, the new employer is permitted to deem this sufficient, so long as the new employee can provide verification of the completed training. Further, if an employer has provided its employees with training this year, but the training did not meet all of the requirements listed above, the employer must provide supplemental training so that all requirements are met.

Recordkeeping — While the state’s laws do not require employers to keep records of employee training, the FAQs encourage employers to maintain copies of any training records. We recommend requiring employees to acknowledge having received training. (New York City employers should be advised that they must maintain records of their employees’ attendance at training.)

How to prepare

New York employers must implement a compliant training program. The state has released model training materials on its website. The model materials include a PowerPoint presentation, a training script, training case studies, and videos. Employers should be advised, however, that use of these materials alone is not sufficient because they are not interactive. Thus, if an employer uses the state’s materials, it must also add an interactive component to the training.

Notwithstanding the availability of the state’s model training materials, an employer may wish to purchase or create a training program that not only complies with the applicable requirements but also is tailored to the employer’s business and its employee population. Particularly where an employer operates in multiple jurisdictions, such training programs will allow the employer to maintain a relevant and consistent training course for all of its employees, which can be supplemented with state- and city-specific content to address applicable legal requirements.

Employers within New York City should review the city’s requirements for training, so that the training provided prior to October 9 can satisfy both state and city training obligations. The city’s law requires certain content not mandated under state law. For example, New York City employers must include content on bystander intervention. New York City has also created a model training program.

Noncompliance

Under New York Labor Law Section 213, employers that fail to comply with the state’s training requirements may be found guilty of a misdemeanor and face significant fines and/or imprisonment. These penalties also apply to any officers or agents of the employer who knowingly permit the violation. Additionally, in cases where allegations of sexual harassment arise, failure to comply with training obligations could result in the loss of potential defenses and/or increased damages.

Susan Gross Sholinsky is a member of the firm in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. She counsels clients on a variety of matters, in a practical and straightforward manner, with an eye toward reducing the possibility of employment-related claims.

Ann Knuckles Mahoney is an Associate in the Employment, Labor & Workforce Management practice, in the Nashville office of Epstein Becker Green. Her practice areas include employment litigation, employing training, practices, and procedures, labor management relations, and wage and hour matters.

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