Guide to New York Sexual Harassment Training Law for Businesses
Bill de Blasio, the mayor of New York City, signed the Stop Sexual Harassment in NYC Act (NYC-SSHA) on May 9, 2018 (also known as local law 96 of 2018). Meanwhile, the state of New York released its final guidance and documents about the state’s sexual harassment prevention program on October 2, 2018.
Under the new policies, employers in New York City are required to conduct sexual harassment training programs for employees as of April 1, 2019, with all relevant employees receiving this training by April 1, 2020. New York State made its sexual harassment training obligatory as of October 9, 2018, with all employers having until October 9, 2019, to give all relevant employees training.
While the changes are very similar in nature, employers need to know about a few differences. In most cases, if you use the New York City sexual harassment training guidelines, you will also be compliant with the New York State guidelines.
What Is Sexual Harassment?
While not currently defined under New York City or state law, the Sexual Harassment Policy for the Office of the State Comptroller defines sexual harassment as “words, signs, jokes, pranks, intimidation or physical violence which are of a sexual nature, or which are directed at an individual because of that individual’s sex” or “any unwanted verbal or physical advances, sexually explicit derogatory statements, or sexually discriminatory remarks made by someone in the workplace which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, or which interfere with the recipient’s job performance.”
For instance, under the New York City law, landlords, employers or service providers cannot:
- Touch customers, employees or tenants in an inappropriate way for any reason
- Threaten to destroy the employee’s career if an employer makes an unwanted sexual advance in the workplace
- Make comments of a lewd or a sexual nature about an employee’s body, how they look or what they are wearing
- Use gender as a basis to refuse service
- Fire, fail to promote or treat tenants, customers or employees unfairly based on their gender
- Retaliate against anyone in any way who reports sexual harassment
Under the New York City Human Rights law, it is illegal to sexually harass anyone in the workplace, when they are looking for housing or in public facilities like stores or restaurants.
Specifics of the Stop Sexual Harassment in NYC Act
Employers need to know about some significant changes to the city’s human rights law that deal with sexual harassment so they can begin to comply with them on April 1, 2019.
1. Who is Impacted
Businesses that employ 15 or more people must train all their employees. This number includes all employees who worked for the company at any point during the previous calendar year. If the business currently has or did have at least 15 employees at any time during that period, it will be required to follow the new sexual harassment training guidelines.
- Under the new law, independent contractors must be included as employees when a business determines how many employees it had employed during the previous calendar year. If an independent contractor has received sexual harassment training elsewhere, they are not required to retake it.
- The New York City law does not specify if independent contractors need to provide sexual harassment training. The city will require them, however, to describe the policies, procedures and practices that concern preventing and addressing sexual harassment.
- The new law includes anyone who has worked more than 80 hours during a calendar year and for at least 90 days for the employer.
- All employees who fall under the guidelines must receive training every calendar year and not within a year of the last time they received it.
- While businesses with 15 or more employees must provide sexual harassment training annually, the New York City Human Rights Law that prohibits sexual harassment will now cover all employers, even those who have fewer than four employees.
As mentioned above, all relevant employees need to receive this training by April 1, 2020, and then annually every following year.
Employers must keep a record of all training which takes place, including every employee’ s signed acknowledgment that they have received the training. They must keep these records for at least three years and have them available to the New York City Human Rights Commission on request.
3. Gender-Based Discrimination
The statute of limitations for reporting a case of gender-based harassment to the city’s Human Rights Commission has increased from one year to three years, and the protections of the law have now been expanded to all employees regardless of the size of the business for which they work.
All the city’s employers must conspicuously post information about anti-sexual harassment rights in both English and Spanish, both letter-sized and legal-sized. While documentation concerning anti-sexual harassment laws is available in nine languages, they must be posted in English and Spanish in places like employee break rooms or lounges.
- Employers may only provide digital copies for employees when there is no suitable facility in which to post the required documentation.
- Employers must also distribute a fact sheet about the businesses anti-harassment procedures to each new employee when they are hired.
Specifics of the New York State Sexual Harassment Training Laws
1. Employees Covered
Under the New York State sexual harassment training law, all businesses in the state need to have provided their employees with anti-sexual harassment training by October 9, 2019. If employees have received some form of sexual harassment training already, but the training did not meet the new requirements of the New York State guidelines, then employers need to provide supplemental training to cover any uncovered topics.
All employers, regardless of how big or small they are, must train all their employees regardless of their immigration status or if they are exempt or nonexempt, part-time, seasonal or temporary.
Employers must train any employee even if they only work a portion of their time in New York State no matter where they are based.
Mandatory harassment training must be provided to every employee at least once a year. This can be based on the calendar year, the anniversary of when the employee started at the company or any other date that the employer chooses to use.
2. Bidding on Contracts
As of January 2019, any company that wishes to bid on a contract with the New York State government needs to submit an affirmation that they have a sexual harassment policy in place and that all employees have received sexual harassment training even if they are not located in New York State.
This includes independent contractors. Employers are also liable under New York State law for any actions of independent contractors, consultants or vendors.
Unlike New York City, employers are not required to have employees sign an acknowledgment that they have received training or read the company’s policy on sexual harassment prevention. Employers are encouraged to do so, however, because this documentation can be useful when dealing with complaints or lawsuits in the future.
Sexual Harassment Training Requirements for New York City Businesses
The New York City Commission on Human Rights is working on developing online training that will be available on its website for employers to use to satisfy the new law. Businesses, however, can provide their own annual training in anti-sexual harassment measures for all employees, including hiring third parties to provide the training.
If they choose to provide their own training, it must:
- Explain why sexual harassment is unlawful discrimination under New York City law.
- Explain that it is also a form of unlawful discrimination under state or federal law.
- Use examples to illustrate how sexual harassment happens.
- Describe the employer’s internal complaint process that addresses sexual harassment complaints.
- Describe the local, state and federal sexual harassment complaint process, and how to get in touch with these organizations.
- Provide examples of how retaliation against an employee who makes a sexual harassment complaint is prohibited.
- Discuss bystander intervention, a new measure under the law which explains how a bystander may intervene when they see a case of sexual harassment happening.
- Include information on managerial or supervisory responsibilities to prevent sexual harassment and retaliation and how managerial or supervisory individuals should address sexual harassment complaints.
Employers must provide sexual harassment training annually, and new employees must receive the training within 90 days of being hired unless they have received the training from another employer during the calendar year.
The law also states that if an employer uses the city’s model training, they must also provide employees with training or information on the employer’s internal process for dealing with sexual harassment complaints.
Sexual Harassment Training Requirements for New York State Businesses
The state has developed a model training program that can be used by any employer in the state to provide sexual harassment prevention training to employees. The state also provides a video that shows someone reading through training slides that offer illustrations of how sexual harassment can take place in the workplace.
- An employer may not, however, only show the training video to employees or a room full of employees. The state’s final guidance says the training may be in person or online but it must be interactive, allowing for employee participation.
- If an employer uses web-based training, the employee needs to provide the correct answer when questions are asked at the end of the presentation. Online training must also provide the opportunity for employees to submit a question and to receive an answer either immediately or as soon as possible.
- If an employer uses live training, the presenter must ask employees questions about the information they are receiving during the training and allow them to answer these questions.
- Both forms of training need to provide a feedback survey for employees to complete after they have received training.
- The training must include explanations of sexual harassment and provide examples of actions that would be illegal under state law.
- Unlike the New York City law, training on retaliation is not required by state law. But state law also says the employer’s policy guidelines on sexual harassment must contain anti-retaliation provisions.
- Under New York State law, bystander intervention is not addressed.
- Employers are required to ensure that supervisory and managerial and regular employees are aware of the responsibilities of those in supervisory and managerial roles to prevent sexual harassment. Supervisors and managers can receive additional training if the employer wishes.
The training must provide information on all federal and state laws concerning sexual harassment and the remedies available in each case. The training also needs the notify employees that there may also be local laws that apply to the prevention of sexual harassment and penalties applied when sexual harassment takes place.
Other Changes Employers Need To Know About
Aside from the sexual harassment training discussed in both the city and state laws, some other new provisions are important for employers to know about:
1. Nondisclosure Agreements Limits
As of July 2018, a nondisclosure agreement (NDA) may not be used as part of the settlement of a sexual harassment case if that NDA would prevent the victim from disclosing the harassment. Only if the person making the complaint wishes to use an NDA is it possible. Even then, the employer must provide 21 days for the person making the complaint to consider whether they want to use an NDA. The NDA must be signed by all parties, and the person making the complaint still has seven days to revoke their decision to use an NDA.
2. Arbitration Agreement Limits
An employer can no longer require an employee to engage in arbitration to settle a sexual harassment claim. This is only possible if the arbitration process is included in a collective bargaining agreement.
3. Expanded Coverage
Non-employees are now protected under the New York State human rights law. This means that if a vendor, consultant, contractor or subcontractor is sexually harassed by the employer or one of their employees, the employer may be liable if they were aware of the sexual harassment and did nothing to stop it.
Steps for Employers to Take Now
Now that you’ve had a chance to look at an overview of the new anti-sexual harassment laws and guidelines for both the city and the state, there are some things that you should do to ensure that you’re in compliance:
1. Which Laws Apply to Your Business?
Which laws apply to your business depends on where your employees work. If any of your employees work in New York City, you must comply with the new city laws as well as the state laws.
2. Review Current Policies
Update old harassment policies to meet the new requirements of both the state and the city. If you have any arbitration agreements or NDAs in place, they need to be changed to meet the current regulations.
3. Review Insurance Coverage
With so many new provisions required under the New York City act or the new guidelines for sexual harassment in the state, it is in your best interest to determine if there is an increased risk for your business. Talking to an experienced insurance agent will help you determine if your current coverage warrants any changes or additions.
How Kokkoris and HR360 Can Provide Your Business With the System You Need to Train Your Employees
We’ve partnered with HR360 to provide your business with the very best learning management system — Training 360. It offers on-demand, high-quality training courses developed by the professional experts at HR360.
The courses feature professionally-produced videos and interactive quizzes that are easy to understand and can be used to provide your employees with the sexual harassment prevention training required under the new laws.
The new HR360 system provides benefits for both employers and employees. Employers can easily track employees’ progress and assigned them the correct courses based on what they do within your company. If you already have courses designed to deal with the new requirements, HR360 can upload them to the system. Meanwhile, employees can take their training at any time or anywhere on any type of digital device. And when they’re done, they’ll get a certificate of completion, and your HR department will receive a notice that they have completed their anti-sexual harassment training.
HR360 can also create an employee manual and will provide you with all the posters about city and state laws that you are required to post.
If you are a client of Kokkorris Insurance Services, we provide this benefit for free.
We also offer a free review of your insurance liability coverage and talk to you about how you may want to change or update your coverage to ensure your business is protected.
At Kokkoris Insurance Services, we’ve been helping businesses across the state handle a variety of important insurance issues for 25 years. Unlike bigger national firms, we can provide individual service to our clients.
If you have any questions about HR360 or whether you have adequate insurance coverage to deal with the new anti-sexual harassment guidelines for either the state of New York or New York City, call us today at 718-728-0606 or contact us online. You can leave us your contact information and provide us with an idea of how we can help you. A member of our team will get back to you as soon as possible.