Thousands of employers choose Clear Law Institute’s sexual harassment prevention training.
First deadline was October 9, 2019. Employees must be retrained at least once per year. This may be based on the calendar year, anniversary of each employee’s start date, or any other date the employer chooses. For simplicity, most employers will likely use a calendar year.
All employers, regardless of size, must provide harassment prevention training to all employees.
According to the final guidance issued by the 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 prevention training. However, those employing children under the age of 14 may opt to simplify the harassment prevention training and sexual harassment prevention policy, while still meeting the minimum requirements.
Only employees who work or will work in the 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 provided with harassment prevention training.
An agency or any other worker organization (e.g. labor union) may choose to provide harassment prevention 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
All contractors who bid on contracts to provide goods or services to the NYS 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, subcontractors, vendors, or consultants; thus, employers are also encouraged to provide their sexual harassment prevention policy and sexual harassment prevention training to anyone providing services in the workplace, in addition to employees.
Employers must provide each employee with the harassment prevention 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. For simplicity and to coordinate with other harassment training laws in New York City and in other states, most employers choose to track completion based on the calendar year.
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 harassment prevention 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.
Employers are not required to (but are encouraged) to keep a signed employee acknowledgment of having read the sexual harassment prevention policy and a copy of all harassment prevention training records, as these records may help address future sexual harassment complaints or lawsuits.
NY State’s final guidance says that harassment prevention training may be in-person or online, so long as it is “interactive”. Interactivity requires employee participation. Examples of employee participation include:
If the training is web-based, and the employee must select the right answer when asked questions at the end.
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. (Clear Law’s harassment prevention training allows users to submit questions and Clear Law – or the client – answers the questions promptly.)
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 training that provides a Feedback Survey for employees to turn in after they have completed the training.
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.”
First Deadline was December 31, 2019, to provide all employees sexual harassment prevention training.
Retraining required each calendar year.
Employers who had 15 or more employees at any given point in the previous calendar year must provide sexual harassment training to their staff.
If a short-term employee, part-time employee, intern, independent contractor, or freelancer works:
then the individual must be trained.
In October 2019, Int. 136-A was enacted, which extends the employment protections of the New York City Human Rights Law (“NYCHRL”) to freelancers and independent contractors, allowing these workers to file discrimination, harassment, and retaliation complaints with the New York City Commission on Human Rights and bring suit in court. It also explicitly required employers to train independent contractors and freelancers who meet the minimum requirements for training. It clarified that employees need not take the training at each workplace they work over the course of a year; independent contractors and freelancers can provide proof of completion of sexual harassment training each year to multiple workplaces. These changes went into effect on January 11, 2020.
Applicability to Employers and Employees Based Outside of New York City
According to guidance issued by the City:
New employees must receive sexual harassment training within six months of hire.
Must provide sexual harassment prevention training to each employee each calendar year.
According to guidance issued by the city, employers should provide sexual harassment prevention training to new employees (and interns, freelancers, and independent contractors) as soon as possible after hire. NYC’s guidance notes that employers are liable for sexual harassment by new employees as soon as they are hired.
Employers are required to train employees who will work more than 80 hours in a calendar year and will work for at least 90 days. New employees who work 80 or more hours per year, on a full or part-time basis, in New York City, must be trained after 90 days of hire.
The sexual harassment prevention training must be “interactive,” which is defined as “participatory.” Online training may suffice if it is interactive.
An explanation of sexual harassment consistent with guidance issued by the New York State Department of Labor (NYSDOL), including examples of conduct that would constitute unlawful sexual harassment.
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.
Information concerning employees’ rights of redress and all available forums for adjudicating complaints.
Training on retaliation is not specifically required by 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 against employees who file an internal or external complaint, testify, or assist in any investigation.
No requirement to address bystander intervention.
According to the 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 sexual harassment prevention 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.
A description of what sexual harassment is, using examples.
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.
The sexual harassment prevention 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 New York City Commission on Human Rights, the New York State Division of Human Rights, and the United States Equal Employment Opportunity Commission, including contact information.
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).
Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention.
The specific responsibilities of supervisory and managerial employees in the prevention of unlawful sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints.
According to the 2019 New York State legislation, employers must now provide employees in New York with a written “sexual harassment prevention 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.
Importantly, the state’s guidelines “recommend” that employers “provide this notice prior to or at the beginning of [a new employee’s] first day of work.” If using an online sexual harassment prevention training program, the guidelines indicate that an employer can meet this requirement to provide notice at the time of hire by providing the employee a link to take the training. To be cautious, Clear Law also provides a course outline that employees can download and print in addition to taking the online training.
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 sexual harassment prevention 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.
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. These limitations on the use of NDAs now apply not only to sexual harassment claims but to all types of harassment, discrimination, and retaliation claims under New York law.
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 harassment 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 model sexual harassment 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 before 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.
Posting Requirements. The New York City Commission on Human Rights has created a poster and information “fact sheet.” 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). The New York State model sexual harassment prevention policy indicates that employers must post their sexual harassment policy “prominently in all work locations and be provided to employees upon hiring.”
Lower Burden of Proof. New York State has lowered its burden of proof for workplace harassment claims. Harassment based on any protected characteristic is now unlawful “regardless of whether such harassment would be considered severe or pervasive,” which is the standard under federal law. Plaintiffs now need only to demonstrate that the harassment subjected him or her to “inferior terms, conditions, or privileges of employment” for the harassing behavior to violate New York State law.
NYC eliminated its “severe or pervasive” standard in 2005. An employee bringing a harassment or retaliation claim in New York City only needs to show that the alleged conduct is more than “petty slights and trivial inconveniences.”
“Faragher-Ellerth” Affirmative Defense Eliminated. New York State has eliminated the “Faragher-Ellerth” affirmative defense that employers can use under federal law. An employer may be able to avoid liability by showing: (1) the employer tried to prevent and correct harassing conduct; and (2) the employee unreasonably failed to take advantage of the employer’s preventative or corrective opportunities (for example, the internal complaint procedures). Now, under New York law, “[t]he fact that such individual did not make a complaint about the harassment to such employer shall not be determinative of whether such employer shall be liable.”
Statute of Limitations Extended. Claimants now have three years to bring a sexual harassment claim under New York State law, whether they file with an administrative agency or in court. Previously the statute of limitations was one year if filing with administrative agencies.
Employers May Face Punitive Damages. State law now allows for punitive damages against employers in harassment, discrimination, and retaliation lawsuits brought under state law.
Attorneys Fees Granted to Prevailing Party. The New York State Human Rights Law now provides that an employee who prevails before a court or the Division of Human Rights “shall” receive attorneys’ fees. In the past, such awards were discretionary. Employers who prevail may only seek attorneys’ fees if the employer can show that the plaintiff’s case was frivolous (continued in bad faith).
The Law Construed to Maximize Deterrence. New York State law must now be construed liberally to “maximize deterrence of discriminatory conduct.”
Employers should take the following steps:
Remember to review the FAQ above on the training obligations and training content requirements.