Both New York State and New York City law now require annual sexual harassment training for all employees. The laws overlap and in some cases conflict, making proper implementation tricky for employers. The deadline for compliance with the city’s training requirement was April 1, 2019, and the deadline for compliance with the state law was October 9, 2019. While the city law covers employers with 15 or more employees over the course of a year (even if not all at once), the state law applies to businesses with even a single employee. Moreover, the term “employee” is broadly defined, encompassing part-time and full-time employees, seasonal and temporary workers, and even employees who are based in another state if they “work a portion of their time in New York State.” The city law also applies the training requirement to paid or unpaid interns who work at least 80 hours in a year and for at least 90 days.
The laws specify various requirements for the training, including advising employees of their rights and remedies under anti-discrimination laws, as well as an interactive component to the training. This latter requirement means that simply giving an employee a video to watch or a manual to read does not comply with the law. Employers must also provide the training in their employees’ primary language. Managers and supervisors are held to a higher standard under the law and must escalate or resolve any harassment or discrimination issue that is brought to their attention, even if no one has actually complained about it.
Given how recently the laws went into effect, it remains to be seen how the New York State Department of Labor (which enforces the state law) or the New York City Commission on Human Rights (which enforces the city law), will treat non-compliance. No financial penalty is currently written into either law. It seems safe to assume, however, that in the event an employer is faced with a sexual harassment or discrimination lawsuit, an adverse inference may be applied by a court if they failed to provide the legally required training. And legislators may eventually amend the laws to apply monetary sanctions if it appears that voluntary compliance is lacking.
Both the state and city provide free online training, as do many companies. However, online training may not meet the interactivity requirement, and depending on where the training was produced or the audience for whom it was created, it may not meet the state or city requirements. Many national companies sell a “one size fits all” training that is supposed to work in every state, but does not necessarily do so. In addition, companies that sell training to multiple states may include information that is not accurate or relevant in New York, such as reference to California’s anti-bullying laws, which have no state or city analog.
Live training is a best practice, according to the New York State Department of Labor, and also has inherent advantages. It lets the employer see who is paying attention, who is rolling their eyes, who is furiously taking notes. A live session may be a way for an employer to learn about or preempt problems in the workplace.
MCB’s Labor & Employment Practice Group can provide tailored, live training that both meets the requirements of the law and helps protect your business. The free online training provided by the state and city may comply with the law by covering all the requirements, but they do not go further to protect business owners. For a flat fee, MCB’s attorneys can provide training that delves into the nuances of this sensitive topic, to help prevent nuisance lawsuits that may be based on a misunderstanding of the law. Employers obviously have an obligation to let employees know what the law is, but it is equally important that they understand what the law is not.
Valerie K. Ferrier, Partner, is an attorney and Head of the Labor & Employment Practice Group at Martin Clearwater & Bell LLP. For more information visit mcblaw.com.