Seyfarth Synopsis: The Stop Sexual Harassment in NYC Act requires employers with 15 or more employees to conduct annual, interactive anti-sexual harassment training. The law went into effect April 1, 2019. Under the law, the New York City Commission on Human Rights is required to publish a compliant online training video. The Commission's model training video was made available on the Commission's website yesterday. The Commission also updated the Frequently Asked Questions ("FAQs").
The " Stop Sexual Harassment in NYC Act" (the "Act"), which was passed on May 9, 2018, requires, among other things, that employers with 15 or more employees in the previous calendar year1 conduct annual, interactive anti-sexual harassment training for all employees employed in New York City. This training requirement is effective as of April 1, 2019. Previous alerts providing a full overview of the law can be found here and here.
The Act directs the New York City Commission on Human Rights (the "Commission") to create and post on its website an online, interactive training module that is free to the public and complies with the substantive training requirements under the law. Yesterday, the Commission published its online module, which is available here. The Commission also updated the FAQs on its website and published a four-minute video titled "What is Gender," which employers may use as part of their anti-sexual harassment training.
Since the Act's passage, one of key question has been whether the City's online training module would be compliant with New York State's law requiring employers of all sizes to provide annual, interactive, anti-sexual harassment training (New York State's law is discussed in more detail here). The City's updated FAQs explicitly provide that the Commission's training module meets the State's training requirements.
The Act also requires that employers maintain a record of all trainings, including a signed employee acknowledgment, for three years. The City's updated FAQs clarify that the Commission's training module will generate a certificate of completion at the end of the training which is individualized to the employee's name. Thus, the employee will have to initially print or save the certificate, as employers will not have direct access to the certification. Moreover, while the FAQs provide that employers may train multiple staff at the same time and on one device, the training module will only produce one certificate and it is the employer's responsibility to keep an independent record of which employees took the training and when. The Commission will not retain any records. Thus, if a certificate is lost, the Commission cannot retrieve it.
The FAQs also provide guidance as to the devices and technology required to support the training.
Under the Act, employers are required to train every employee each calendar year. Therefore, to be in compliance with the City law, employers must train all of their employees by December 31, 2019. Under the State law, however, all employees are required to be trained by October 9, 2019. Thus, for 2019, City employers should conduct all anti-sexual harassment training by October 9, 2019 to ensure compliance with both City and State training requirements.
The Commission's FAQs also make clear that employees who received compliant training in 2019, but prior to the Act's effective date of April 1, do not need additional training in 2019.
Who Needs To Be Trained
The Act requires employers to train short-term employees, part-time employees, and independent contractors (performing work in furtherance of the business) if they worked: (i) more than 80 hours in a calendar year; and (ii) for at least 90 days.
The FAQs have been updated to provide further clarification on New York City employers who have employees working outside the City. The FAQs state that "[i]f the employee is connected to New York City in any way, [the employee] must be trained." The FAQs also provide three examples of when employees must be trained: (1) employees who work or will work in New York city; (2) an employee working a portion of the time in New York City; and (3) employees based elsewhere who interact "with other employees in New York City, even if the employee is not physically present in the City."
Employers should consider whether they want to utilize the Commission's online training module or opt for alternative training programs. Employers should also start planning on when to start conducting training now that both the City and State laws are effective. Seyfarth Shaw attorneys are available to assist employers with further guidance on these issues.
1 Small employers should be aware that independent contractors - regardless of the number of days or hours they work - count as employees for the purposes of calculating the 15-employee minimum.
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