What does New York's new harassment law tell us about the future of harassment training?
No one in Illinois says, "As New York goes, so goes America!" On the other hand, the wise employer may want to give some attention to the new law that went into effect in New York on Oct. 9. It may well be a harbinger of things to come, and may at least suggest some best practices. Moreover, if you have any employees in New York, this law applies to those employees.
Court decisions have made clear for years that all employers should provide harassment prevention training. California, Connecticut, Delaware, and Maine have already also specifically required sexual harassment training by state statute. New York now joins the fray.
Starting Oct. 9, not just any old harassment training will suffice for New York employers. Instead, rigid guidelines for such training now exist. Here are some highlights:
• By Oct. 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. Beginning January 2019, 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.
• 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.
• Requires that the training is provided annually.
The New York law specifically addresses required training content. Training may be in-person or online so long as it is "interactive." Interactivity requires employee participation. Examples of employee participation include: (1) if the training is web-based, the employee must select the right answer when asked questions at the end; (2) 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; (3) if it is in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions; and (4) web-based or in-person training that provides a feedback survey for employees to turn in after they have completed the training.
According to New York 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 also provide an explanation of sexual harassment consistent with guidance issued by the New York Department of Labor, including examples of conduct that would constitute unlawful sexual harassment. It must provide 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. It must also include information concerning employees' rights of redress and all available forums for adjudicating complaints.
Finally, 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 employers should inform all employees of supervisors' and managers' responsibilities for preventing and reporting sexual harassment.
Statutorily-mandated or not, following these requirements will keep the wise employer ahead of the curve and minimize future harassment problems. Avoiding litigation in this area remains a paramount objective for all employers. • For more information, contact David Carr (firstname.lastname@example.org) or another member of our Labor, Employment and Immigration Group. This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.