New York State and New York City Sexual Harassment Training Laws
Michael Johnson, J.D., CEO, Clear Law Institute*
August 12, 2019 Update
On August 12, 2019, Governor Cuomo signed Assembly Bill A8421, which significantly expands New York State sexual harassment and discrimination laws. These changes are in addition to the significant legislation that New York enacted in 2018. This article details the current requirements under New York State and New York City sexual harassment training laws. (Learn more now about Clear Law’s online New York sexual harassment training.)
New York Sexual Harassment Training Deadline of October 9, 2019
By October 9, 2019, employers must provide sexual harassment training to all employees located in New York State. Subsequently, employers must provide sexual harassment training to all employees each year. All companies that bid on contracts with the New York State government must submit an affirmation that they have a sexual harassment policy and have provided sexual harassment training to all employees, even those not located in New York State.
Court decisions and regulations from around the country have made clear for years that all employers should provide harassment prevention training. At the same time, California, Connecticut, Delaware, Illinois, and Maine have specifically required sexual harassment training by state statute. The New York State law:
- Applies to all employers, regardless of their size, who employ anyone in the state of New York.
- Applies to all contractors who bid on New York State contracts.
- Applies to all employees, not just supervisors. (California, Connecticut, Delaware, and Maine also require training for all employees.)
- Requires that the training is provided annually.
The NYC law, entitled the “Stop Sexual Harassment in NYC Act,” applies to all employers with 15 or more employees, and requires annual sexual harassment training for all employees, beginning on April 1, 2019.
Both New York State and New York City laws detail specific content that must be addressed in the training. While New York State training content requirements are similar to content requirements in other states, New York City’s law goes beyond the training content that previously has been required in other jurisdictions. For example, the training provided to employees in New York City must:
- Address bystander intervention
- 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, and provide employees with those agencies’ contact information
The two tables below detail the obligations and the differences between the New York State and New York City laws regarding:
- Training Requirements (Table 1)
- Training Content (Table 2)
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Sexual Harassment Training Obligations in New York State
|New York State||New York City|
|Effective Date and Deadline||Effective October 9, 2018. Deadline of October 9, 2019, to have all employees trained.||Effective April 1, 2019. Deadline of April 1, 2020, to have all employees trained.|
|Employers and Employees Covered||All employers, regardless of size, must train all employees.|
According to the final guidance issued by New York State, an “employee” includes all workers, regardless of immigration status. “Employee” also includes exempt or non-exempt employees, part-time workers, seasonal workers, and temporary workers.
Minor employees, such as child actors, are required to take sexual harassment training. However, those employing children under the age of 14 may opt to simplify the training and policy, while still meeting the minimum requirements.
Only employees who work or will work in New York State need to be trained. However, if an individual works a portion of their time in New York State, even if they’re based in another state, they must be trained.
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.
|Employers with 15 or more employees must train all employees, who work 90 or more hours per the calendar year, on a full or part-time basis in New York City.|
|Government Contractors Covered||Beginning on January 1, 2019, all contractors who bid on contracts to provide goods or services to the NY State government or any state agency, where competitive bidding is required, must certify under penalty of perjury that they have a sexual harassment policy and that they provide annual sexual harassment training to all employees, even those outside of the state. Specifically, the bid must include the following language: “By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing sexual harassment prevention in the workplace and provides annual sexual harassment prevention training to all of its employees.” (State Finance Law, Section 139-L).|
The New York State Human Rights Law imposes liability on employers for the actions of independent contractors, vendors, or consultants; thus, employers are also encouraged to provide their policy and training to anyone providing services in the workplace, in addition to employees.
|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 Often||Employers must provide each employee the training at least once per year. 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 Employees||The NY State final guidance encourages training of new employees as soon as possible, noting that employers may be liable for the actions of employees immediately upon hire.|
The law requires that employers provide a sexual harassment prevention policy and training on an annual basis to all employees. 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.
|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.|
|Recordkeeping||Employers are not required to (but are encouraged) to keep a signed employee acknowledgment of having read the policy and a copy of all training records, as these records may be helpful in addressing future complaints or lawsuits.||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.|
|Interactivity||NY State’s final guidance says that training may be in-person or online, so long as it is “interactive”. Interactivity requires employee participation. Examples of employee participation include:|
According to NY State’s guidance, “An individual watching a training video or reading a document only, with no feedback mechanism or interaction, would NOT be considered interactive.”
|The training must be “interactive,” which is defined as “participatory.” Online training may suffice if it is interactive.|
Harassment Training Content Requirements in New York State and NYC
|New York State||New York City|
|Sexual Harassment Definition and Examples||An explanation of sexual harassment consistent with guidance issued by the NY DOL, including examples of conduct that would constitute unlawful sexual harassment.||A description of what sexual harassment is, using examples.|
|Applicable Laws||Information containing the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment, and a statement that there may be applicable local laws.||An explanation of sexual harassment as a form of unlawful discrimination under 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 Redress||Information 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.|
|Retaliation||Training on retaliation is not specifically required by New York State law, but the law also notes that anti-retaliation provisions must be included in the employer’s policy. New York’s Human Rights Law prohibits retaliation for employees who file an internal or external complaint, testify, or assist in any investigation.||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 Intervention||No 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’ Duties||According to the NY State guidance, employers must ensure managers and supervisors, as well as all employees, are aware of the extra requirements and responsibilities for those in managerial/supervisory roles. While employers may provide additional or separate training to supervisors and managers, this language indicates that employers should inform all employees of supervisors’ and managers’ responsibilities for preventing and reporting sexual harassment.||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.|
Required Distribution in Writing of Anti-Harassment Policy and Information Presented in the Employer’s Training Program
According to the 2019 New York State legislation, employers must now provide employees in New York with written notice at the time of their hire and during annual sexual harassment training. The notice must include (1) the employer’s sexual harassment prevention policy and (2) the information presented in the employer’s sexual harassment prevention training program.
Employers must provide the required information in English and in the language identified by each employee as his or her primary language.
The state will publish a model policy in languages other than English (depending on the prevalence of each language in the state). New York employers are not required to provide their policy in another language if the state has not published a template in that language. This requirement to provide notice at the time of hire and during annual training goes into effect immediately upon enactment on August 12, 2019.
New York City has indicated that it will, at some point, create a model training that can be used by employers in New York City. New York State has developed a model training document that can be followed by employers to provide their employees with training. The State also created a video of someone reading through the training slides and sample scenarios. However, the State specifically cautions that simply showing the training video to an employee will not satisfy the State’s minimum training requirements, as this would not be considered “interactive.” If an employer chooses to use the video to meet its training requirements, it must also:
- Ask questions of employees as part of the program;
- Accommodate questions asked by employees, with answers provided in a timely manner; or
- Require feedback from employees about the training and the materials presented.
According to New York State, during the interactive portion of the training, “employers should be prepared to address questions raised by employees including those specific to their industry, questions about the organization’s reporting process, and questions about how hypothetical cases would be handled.”
Of course, for many employers, the interactivity requirement will be challenging. Many employers may not have anyone with the appropriate level of expertise to facilitate the harassment training and answer questions about harassment issues. An employer who provides the training with an unqualified facilitator runs the risk of providing non-compliant training and having the facilitator give inaccurate guidance.
Most employers likely will turn to a third party with expertise in training on sexual harassment prevention, such as Clear Law Institute. Indeed, the New York City law explicitly states that its model training is designed to be a minimum threshold. Many employers will likely turn to expert providers of sexual harassment training:
- To provide comprehensive instruction on the topic. For example, the NYC law requires employers who will use its model training to separately instruct all employees on the employer’s internal complaint process for addressing sexual harassment claims.
- To ensure that the training complies with all 50 states’ requirements, not just the requirements of the State of New York and New York City.
- To ensure that the training provides legally accurate guidance. If an employer were to provide in-person training following New York State’s training script, for example, the trainer may not have the expertise to facilitate the training and accurately answer questions.
- To provide employees with “best-in-class” instruction that utilizes cutting-edge instructional design principles to help improve employees’ understanding of the principles taught.
- To be able to answer questions from users (as required to meet the “interactivity” requirement). Users of Clear Law’s online training can ask questions and have those questions answered within two business days by Clear Law or a client official.
- To be able to efficiently track who has and who has not completed the training each year, which can be handled by a modern Learning Management System.
- To have their online training provider handle all technical support calls from their employees.
Clear Law Institute will Update its Harassment Training at NO COST
While many providers offer training on preventing workplace harassment, few have the legal and instructional design expertise required to comply with certain harassment training laws, such as those in New York. Clear Law Institute’s hundreds of clients can sleep well knowing that we monitor laws around the country to ensure that our training stays up-to-date with changes in the law. Indeed, we have updated our harassment course numerous times in the last three years to comply with new training laws.
Clear Law Institute’s New York sexual harassment training is now ready to be delivered to your employees. If needed, Clear Law will modify its courses to comply with any changes in New York State or New York City laws. Importantly, Clear Law does not charge its clients to update its course content due to changes in the law.
Other Provisions of the New York State and City Sexual Harassment Laws
Limitations on Non-Disclosure Agreements. Effective July 11, 2018, New York State prohibits the use of a nondisclosure agreement (“NDA”) as part of the settlement of a sexual harassment claim, where the NDA would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment. An NDA is prohibited unless the complainant prefers such a provision. If the complainant indicates that he or she prefers an NDA, the employer must give the complainant 21 days to consider the NDA, and then memorialize the complainant’s preference for an NDA in writing, signed by all parties. The complainant then has an additional 7 days to revoke the preference for an NDA. The New York State law requires that the 21-day consideration period expire (and cannot be waived or shortened) before the complainant’s preference can be memorialized, and the minimum 7-day revocation period cannot start until after.
Limitations on Arbitration Agreements. In 2018, New York prohibited employers from requiring employees to arbitrate sexual harassment claims, unless it was part of a collective bargaining agreement. In 2019, New York State expanded the prohibition of mandatory arbitration clauses to include not just sexual harassment claims, but also any discrimination or retaliation claim. (However, in June 2019, in the case of Latif v. Morgan Stanley, a federal judge in the Southern District of New York ruled that the ban on arbitration of sexual harasssment claims conflicts with the Federal Arbitration Act [“FAA”], and is therefore unenforceable.)
Model Sexual Harassment Policy. As required by the New York State law, the New York State Department of Labor has developed a “model” sexual harassment prevention policy that includes a standard complaint form and a procedure for the “investigation of complaints” that ensures “due process for all parties.” Employers may either adopt this policy as their own or ensure that their policy includes all the mandated elements. According to the New York State final guidance, employers should distribute the policy to employees prior to beginning work. Employers must provide the policy to all employees in writing or electronically. If a copy is made available on a work computer, employees must be able to print a copy for their own records. Employers are not required to collect a signed acknowledgment of employees having read the policy, but employers are encouraged to keep a signed acknowledgment. Employers should also post copies of the sexual harassment policy in the workplace.
Coverage Expanded. The New York State law also expands protection under the New York State Human Rights Law for non-employees, specifically noting that that an employer may be liable for sexual harassment of contractors, subcontractors, vendors, and consultants where the employer knows, or should know, that harassment is occurring in its workplace and fails to take immediate and appropriate corrective action to stop the offending conduct. Given this, employers will want to ensure that their training addresses the prevention and reporting of harassment of such non-employees. In addition, employers may be wise to offer their harassment prevention training to non-employees, especially contractors, subcontractors, and consultants.
At the New York City level, the Stop Sexual Harassment in NYC Act has modified the New York City Human Rights Law (NYCHRL) to now cover employers with fewer than 4 employees for sexual harassment claims.
Posting Requirements. The NYC Commission on Human Rights has created a poster and information “fact sheet.” As of September 9, 2018, all employers in NYC must post an anti-sexual harassment rights and responsibilities poster in English and Spanish and provide an information fact sheet on sexual harassment to each employee at the time of hire (which can be included in an employee handbook). To receive a copy of the posters and fact sheets, please contact us. The New York State sexual harassment policy indicates that employers must post their sexual harassment policy “prominently in all work locations and be provided to employees upon hiring.”
What to Do Now
Employers should take the following steps:
- Determine if the New York State and NYC laws apply to your organization.
- Do you have any employees working in New York or New York City?
- Does your organization bid, or plan to bid, on a New York state or NYC contract?
- Review your policies, arbitration agreements, and NDA’s.
- Update your existing harassment policy to meet the requirements of the New York State and NYC laws.
- Review your current arbitration agreements and NDA’s with employees.
- Comply with poster and “fact sheet” requirements.
- Ensure that your harassment training is updated to address the new content requirements of the New York State and NYC laws. Clear Law Institute offers one course that covers the requirements of both the New York State and New York City laws.
- Insert your updated policy in your harassment training course.
- Ensure that you provide instruction on your internal policies for receiving and investigating complaints.
- If using online training, determine who will answer questions submitted by users. (Clear Law offers to answer questions on behalf of its clients.)
- Train all covered employees before October 9, 2019.
- Train all covered employees annually thereafter.
Remember to review the tables above on the training obligations and training content requirements.
Clear Law Institute continually monitors updates to federal and state laws to ensure that its online training is legally accurate and up-to-date. Clear Law Institute’s online course, Positive Workplace: Preventing Workplace Harassment and Bullying is used by hundreds of employers across the nation, including several Fortune 500 companies. Learn more about and view a free course demo of Positive Workplace.
* 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.