Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As we have previously reported,1 New York State and New York City both enacted legislation in 2018 that require New York employers to train their employees in workplace sexual harassment prevention. The state training legislation went into effect on October 9, 2018, and the city training legislation went into effect on April 1, 2019. Together, the laws require employers to train their New York-based workforce annually and to cover certain topics during the training such as the definition of sexual harassment, a manager’s role in preventing sexual harassment, retaliation, and bystander intervention, among other topics.
The city law tasked the New York City Commission on Human Rights (Commission) with creating a free “online interactive training module” to assist employers in satisfying the training requirement. On April 1, 2019, the Commission published its free online training entitled “Confronting Sexual Harassment: Tools and strategies to create a harassment-free workplace.” This training can be found here.
Content of the City Module
The city’s training module contains 164 slides and requires the participant to engage with the slides by answering true or false questions and by clicking to the next slide when finished with each lesson. Both the content and the interactive components of the city’s module satisfy the state and city requirements, making it a potential one-stop-shop for employers that choose this training route to comply with both New York laws. However, employers are advised to review the module before simply deploying it.
Towards the beginning of the module, the participant is shown a video about gender, including a summary of the following concepts: gender identity, cisgender, transgender, non-binary, an explanation of the difference between gender and sexuality, and examples of gender expression. That video can be viewed here.
The training then takes the participant through a series of demonstrative stories to illustrate and answer the below agenda points:
- What is sexual harassment?
- What are my rights?
- What must an employer do?
- What do I do if I see harassment?
- How do I file a complaint?
The module then covers an employee’s right to complain to the city, state and federal agencies that enforce workplace sexual harassment laws. The city legislation specifies that each employer must also inform their employees of any internal complaint processes available to employees to address sexual harassment claims, but it is up to individual employers to disseminate this information.
Employers are required to keep a record of their annual sexual harassment prevention training, including a signed employee acknowledgment. Employers are required to maintain such records for at least three years, and make those records available for Commission inspection upon request. The city’s module provides a certificate of completion to the participant, which the participant may print out. It is the employer’s responsibility, however, to maintain these records, so employers that allow employees to complete the module at their own pace will need to follow up with employees to confirm completion.
The Commission also published revised Frequently Asked Questions (FAQs). They can be found here. The FAQs provide the Commission’s guidance on how city employers should stay compliant, including the below information:
- All employees must be trained by December 31, 2019, and then annually after that. Note that New York State still requires employees to complete their first training by October 9, 2019, so employers should target that date notwithstanding this FAQ.
- The City suggests, “[i]f an employee is based elsewhere but interacts with other employees in New York City, even if they are not physically present in the City, they should be trained.” This is different from the state’s guidance, which focuses on physical presence in the state. Also, the underlying City legislation only refers to training “employees…employed within the city of New York,” not persons located elsewhere.2
- An employer is allowed to have multiple employees take the training at one time and document participation internally using a sign-in sheet acknowledging participation or creating their own certificates of completion.
- The time spent completing the annual training is paid work time.
- The city’s module will be available in the coming months in Spanish, French, Chinese, Korean, Haitian Creole, Bengali, Russian, Polish, Urdu, and Arabic.
Guidance for Employers
New York employers now have a variety of training options to satisfy the New York training requirements, including the new city module. However, free and low-cost training options may not meet employers’ more specific needs. For example, national and global employers may want to choose a training option that satisfies evolving requirements in multiple jurisdictions, including more comprehensive training for managers and those who conduct internal investigations. Companies in which sexual harassment has been a recent issue may want attorney-led and/or manager-specific training or one-on-one / small-group executive coaching. Employers may also decide that they want to lead their own trainings internally and develop training content such as a customized presentation that incorporates industry considerations, internal policies and demonstrative videos, as well as content related to other types of discrimination apart from sexual harassment. Employers should consider which option is the best fit for their particular workplace.
1 See Devjani Mishra and Emily Haigh, New York Anti-Sexual Harassment Requirements Take Full Effect, Littler Podcast (Oct. 9, 2018); Devjani H. Mishra, Jill M. Lowell, and James A. Paretti, Jr., NY Pushes Back Sex Harassment Training Deadline to October 9, 2019, Littler ASAP (Oct. 2, 2018); Eli Z. Freedberg and Devjani H. Mishra, Significant Compliance Challenges in New York State's Proposed Anti-Sex Harassment Rules: What Can Employers Do Now?, Littler Insight (Sept. 7, 2018); Eli Freedberg and Emily Haigh, NY Agencies Publish Draft Sexual Harassment Model Policy, Complaint Form, and Training, Littler ASAP (Aug. 24, 2018); Devjani Mishra and Emily Haigh, New York Sexual Harassment Laws – The City Commission Publishes Poster and Fact Sheet, Littler ASAP (Aug. 13, 2018); Devjani Mishra and Emily Haigh, New York State and City Expand Anti-Harassment Requirements for Employers, Littler Insight (Apr. 13, 2018).
2 N.Y.C. Admin. Code. 8-107(30).