Sexual Harassment Training New Jersey

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On February 18, 2020, New Jersey Governor Phil Murphy announced broad legislation to combat harassment in the workplace, including a requirement that all employers provide training on unlawful harassment and discrimination.

Since then, bills have been introduced in both houses of the New Jersey Legislature addressing workplace harassment prevention.  While AB 4637 and SB 3262 differ in several aspects, they both expressly require employers to implement sexual harassment prevention training programs and to adopt discrimination and harassment prevention policies.

Under the proposed legislation, all employers in New Jersey will be required to provide all employees interactive training on preventing unlawful workplace harassment and discrimination, beginning one year after enactment.

To help organizations prepare for these new legal requirements in New Jersey, Clear Law Institute has provided answers to Frequently Asked Questions (FAQs) below.  Clear Law will continue to report on future developments and will update these FAQs as new information becomes available.

FAQs

Covered Employers and Employees

Which employers must provide training?

The law will require all employers to provide sexual harassment training.

Which employees must be trained?

The law will require employers to train all employees.

Depending on which version of the pending legislation passes, the law may require employers to train all independent contractors and stakeholders who perform services for the employer.

Deadlines

When is the initial deadline to provide sexual harassment training to employees?

The law will require employers to train employees beginning one year after the effective date of the law.

When must employers train new employees or new supervisors?

The law will require employers to train all new employees within 90 days of hire and all new supervisors within 90 days of initial hire or promotion to a supervisory position.

Must employers provide periodic retraining to employees?

Yes.  The law will require employers to retain all nonsupervisory and supervisory employees once every two years.

Required Training Content

What content must the training include?

The law will require the training for all employees to include, a minimum, the following:

  • A statement that unlawful discrimination or harassment in the workplace will not be tolerated and that sanctions will be enforced against individuals engaging in discrimination or harassment and against supervisory and managerial personnel who knowingly or negligently allow the discrimination or harassment to continue

  • The definition of unlawful employment discrimination and harassment

  • Examples of discriminatory and harassing behaviors prohibited by the employer’s policy (which the law will require all employers to adopt).

  • A description of the employer’s internal process for reporting complaints about discrimination or harassment

  • Directions as to how to contact the New Jersey Division on Civil Rights

  • A description of the prohibition on retaliation against those who disclose, report, participate in an investigation of, or otherwise challenge discrimination or harassment;

  • Examples of retaliatory behaviors prohibited by the employer’s policy (which the law will require all employers to adopt)

  • Bystander intervention information

Training for supervisors must include all of the above, as well as the following additional information:

  • the specific responsibilities of a supervisor to prevent discrimination and harassment

  • the specific responsibilities of a supervisor to prevent retaliation

  • appropriate measures and corrective actions supervisors may take to address complaints and instances of discrimination, harassment, and retaliation

Must the training include bystander intervention information?

Yes, the law will require the employer to train all employees on bystander intervention.

Training Logistics

Can employers provide training through online courses?

The law will permit employers with fewer than 50 employees* to provide the required training through online, interactive courses.

However, the law will require employers with 50 or more employees* to provide the required training in a live, in-person setting where participants can ask questions.  

An employer who had 50 or more employees anywhere in the world for each workday during 20 or more calendar workweeks in the current or immediately preceding year meets the 50-employee threshold requiring live, in-person training.

What constitutes “interactive training”?

The law will define “interactive training” as participatory although except where expressly required for employers with 50+ employees, it need not be live or facilitated by an in-person instructor.

Must the training be a certain length? 

The pending legislation is not clear on this issue, but language contained in the Assembly Bill indicates that one-hour training for nonsupervisory employees and two-hour training for supervisory employees may be required.   

Must the employer provide its training in languages other than English?

Yes. The law is likely to require employers to provide the training in English, Spanish, and any other language spoken by an employee whose primary language is not English and who has limited ability to understand English.

Must the employer update its training?

Yes. The law will require employers to review their training program at least once a year to ensure compliance with applicable laws and regulations.

What are the employer’s training recordkeeping requirements?

The law will require employers to keep a record of employees’ completion of all training completed for at least three years, and possibly for four years. The employer may maintain the required documentation electronically. Employers must make the records available for inspection upon request by the Divison on Civil Rights.

Related Requirements

Required Discrimination and Harassment Prevention Policy

The law will require all employers to adopt a written policy addressing discrimination and harassment prevention in the workplace.  The policy must apply to all employees in their interactions with each other and with vendors, suppliers, customers, clients, and patrons.  The policy must be distributed annually to all employees and also:

  • to new employees at the beginning of employment;

  • to all employees and whenever any changes are made to the policy;

  • to any employee who makes a complaint, at the time of the complaint; and

  • to any employee who is interviewed in connection with an investigation into an alleged policy violation, at the time of the interview.

The law will also require employers to make the policy available in English, Spanish, and any other language spoken by an employee whose primary language is not English and has limited ability to understand English.

Additionally, the law will require employers to review their policy at least once a year to ensure continuing compliance with appliable laws and regulations.

While the pending bills vary slightly in their requirements, the law will require employers to include, at a minimum, the following content:

  • a statement that unlawful discrimination or harassment in the workplace will not be tolerated and that the employer will impose discipline on persons who engage in unlawful discrimination or harassment and against supervisory personnel who knowingly allow such behavior to continue;

  • a definition of unlawful employment discrimination and harassment;

  • examples of prohibited discriminatory and harassing conduct;

  • a description of the process for filing internal complaints, including complete contact information of the person(s) to whom complaints should be made;

  • directions as to how to contact the New Jersey Division on Civil Rights if a person believes their rights were violated;

  • the statute of limitations periods applicable to filing a claim of unlawful discrimination and harassment under the Law Against Discrimination;

  • a prohibition on retaliation against anyone who reports, participates in an investigation of, or otherwise challenges prohibited discrimination or harassment;

  • examples of prohibited retaliatory conduct;

  • a description of potential consequences for violating the policy; and

  • a statement of the employer’s commitment to conducting prompt, thorough, and impartial investigations of discrimination or harassment complaints.

Required Reporting

The law will require employers with at least 50 employees anywhere in the world to collect information on the number and types of complaints of unlawful discrimination, harassment, or retaliation, broken down by the protected classification alleged by the complainant.  Covered employers will be required to submit to the Division on Civil Rights an annual report showing, by type of complaint and alleged protected classification, the following:

  • total number of complaints filed,

  • number of complaints filed that were found by the employer to be substantiated,

  • number of complaints filed that were found by the employer to be unsubstantiated, and

  • number of complaints filed whose resolution is still pending.

The law will require the New Jersey Division on Civil Rights to publish a form that employers must use to submit this data.

Other Changes in the Proposed Legislation

In addition to the training requirements outlined above, the new law is expected to make the following changes to New Jersey’s discrimination laws:

  • expand the scope of the New Jersey Law Against Discrimination (NJLAD) to include unpaid interns and domestic workers

  • extend the statute of limitations for filing a complaint with the New Jersey Division of Civil Rights to one year

  • extend the statute of limitations for cases brought under the NJLAD to three years

Additionally, while the two pending bills contain different language, the new law is also likely to

  • codify the standard for establishing a hostile work environment, and

  • codify the standard for employer liability for hostile environment harassment engaged in by employees, non-employees, and supervisory employees.

Finally, depending on whether certain provisions in the pending bills are adopted, the new law may, among other things,

  • require the New Jersey Division of Civil Rights to create model policies and training to help facilitate compliance;

  • expand the scope of the NJLAD to include independent contractors and stakeholders;

  • expand protected characteristics to include, among others, familial status, perceived disability or other protected characteristic, association with a person with a perceived or actual protected characteristic, or the status of being in transition to having a protected characteristic or transitioning from one protected characteristic to another;

  • eliminate the current 70-year threshold in the age discrimination prohibition; and

  • expand the NJLAD’s prohibition by making it unlawful for “any person” to engage in sexual harassment or harassment based on any other protected characteristic.

Impetus for the Proposed Legislation

After a year-long study, the New Jersey Division on Civil Rights published a report, “Preventing and Eliminating Sexual Harassment in New Jersey,” which focused on sexual harassment. The report noted that while sexual harassment affects people of all races, religions, genders, and sexual orientations because sexual harassment is often rooted in power imbalances, marginalized communities are often the most vulnerable. These groups include women of color, immigrants, domestic workers, and the LGBTQ+.

The report also outlined best practices for employers, including recommendations that organizations adopt comprehensive policies addressing sexual harassment training reinforced through effective training. 

Next Steps

Both bills have been referred to the appropriate legislative labor committees for consideration.  Clear Law Institute will continue to report on future developments regarding this new legislation in New Jersey.

Why Clear Law Institute?

More than 1,000 employers rely on Clear Law Institute to provide online sexual harassment training to their employees across the country because our training:

  • Complies with all 50 states’ laws, including New Jersey law

  • Provides users with the ability to ask questions and have those questions answered, as required by several states

  • Is kept up-to-date with any changes in the law at no additional charge

  • Utilizes cutting-edge instructional design principles and learning games

  • Efficiently tracks who has and who has not completed the training each year, as handled by Clear Law’s Learning Management System. This prevents employers from having to collect and track certificates manually.

Learn more and view a free course demo now.

About the Author

Michael Johnson, CEO of Clear Law Institute, is a former U.S. Department of Justice attorney who brought one of DOJ’s first “pattern or practice” sexual harassment cases. He has provided training and consulting on harassment prevention or investigations to organizations around the world, such as the EEOC, the United Nations, and Google. He is a graduate of Duke University and Harvard Law School.  Read more about Michael here.

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