Hunton Employment & Labor Perspectives

Employers who operate in New York State and City are likely aware of the new sexual harassment laws that are starting to take effect.  Many companies have already revised their sexual harassment policies to comply with the new laws, but now face the hurdle of complying with the sexual harassment training requirements under both the State and City laws.

While there is overlap between the State and City requirements, there are differences that employers should note.

New York State:

The state law requires every employer in the state to provide employees with annual sexual harassment prevention training.  The State Department of Labor and State Division of Human Rights recently published in draft form a model training that employers may use to comply with this requirement.  Employers also are free to use any other training that meets or exceeds the following minimum requirements:

• Be interactive
• Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
• Include examples of unlawful sexual harassment
• Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment
• Include information concerning employees’ rights of redress and all available forums for adjudicating complaints
• Include information addressing conduct by supervisors and additional responsibilities for supervisors

The state law goes into effect October 9, 2018, and employers have until that date to ensure all employees are properly trained.

 New York City:

The city law requires employers with 15 or more employees to conduct annual anti-sexual harassment training for all employees.  The NYC Commission on Human Rights is required to develop a model training for employers’ use, which will satisfy the law so long as employers add information about their internal complaint process.  Employers may also choose to provide their own training, provided that it includes the following elements:

• An explanation of sexual harassment as a form of unlawful discrimination under local, state, and federal law
• A description of what sexual harassment is, using examples
• Any internal complaint process available to employees through their employer to address sexual harassment claims
• The complaint process available through the Commission, the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission, including contact information
• The prohibition of retaliation, including examples
• 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 sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints

The city law also has a recordkeeping requirement, where employers must keep a record of all trainings, including a signed acknowledgement by each employee who participates in the training.  The city law goes into effect April 1, 2019, and employers have one year to implement the training for all employees.

Employers who are covered by both the state and city laws should consider developing a training that complies with both.  In order to do so, you may look to the New York State model training, and add missing elements from the New York City requirements, such as:

• An explanation of sexual harassment as a form of unlawful discrimination under local (NYC) law
• A statement that sexual harassment is a form of unlawful discrimination under state and federal law
• The complaint process available through the NYC Commission( the NYS training does already include information about the complaint process through NY state and the EEOC)
• Bystander intervention and resources – the NYS training simply notes that witnesses to sexual harassment should report it, which likely does not qualify as information about bystander intervention

And, for the New York State training to meet NYC’s standards, employers must comply with the recordkeeping requirement.