August 3, 2018

Sexual Harassment Training is Not Just the RIGHT Thing to Do. Now, at least in New York, it is the REQUIRED Thing to Do!


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Stories related to sexual harassment in the workplace seem to be more and more prevalent these days. This week along, we have heard at least two stories of alleged sexual harassment. From heads of companies using their power and influence to dominate to HR Executives who don't think twice about hiring women to use as their own personal sex harem, it appears that sexual harassment is getting more blatant. If you are anything like me, you must be thinking how these large, seemingly well-organized and resourceful companies are finding themselves in these positions, with their abilities to create systems and processes to prevent harassment from occurring, or at least to swiftly and deftly deal with is properly when it does. Well, if large, powerful organizations can find themselves besieged in the quagmire of sexual harassment, we know that small and mid-sized businesses may find themselves even more at risk and exposed. While harassment training, and specifically SEXUAL harassment training is, and always has been a recommendation, for New York businesses, it is now a REQUIREMENT!
There have been changes to New York state and New York City laws that now require businesses to provide harassment avoidance training.  Under NY State law, ALL employers with employees working in the state of New York, regardless of size, must conduct annual anti-sexual harassment training, as of October 9, 2018. The Stop Sexual Harassment in NYC Act (the “City Act”) was signed by Mayor DeBlasio in May, and requires employers with 15 or more employees in the city of New York to provide annual “interactive” training on sexual harassment beginning on April 1, 2019, and that training acknowledgment forms be kept by employers for three (3) years.  The City Act further requires that employers provide training to new hires within ninety (90) days of employment, unless they have already completed training in the same cycle with a previous employer.  Both state and city laws also mandate that employers have sexual harassment policies containing specific provisions consistent with these new laws. The NY City act does contradict the state law somewhat, so it is recommended that ALL employers with employees in the state of New York provide anti-sexual harassment training to their employees.  
Harassment training should be customized for employees and supervisors/managers separately. Additionally, it is highly recommended that training also covers bystander responsibilities. So often, I hear about situations where sexual harassment could have been prevented or dealt with early on had the person witnessing the behavior knew their responsibility to report. Under the NYC Act, Bystander Intervention training will be required. Intervention training is a form of training by which a third person, or "bystander" intervenes to prevent a potentially harassing situation. 

Under the NY State law, the interactive training must meet or exceed the standards to be set forth under the model training program by the New York State Department of Labor (NYSDOL) and the New York State Division of Human Rights (NYSDHR). The training program is still being developed, and the requirements under the State and City law differ somewhat, but will require the training to include:

  • An overview and explanation of what constitute sexual harassment under New York STATE, CITY, and LOCAL law, with examples; 
  • Information on employees' legal rights and modalities to bring forth claims of sexual harassment;
  • An explanation of the internal complaint procedure process available to employees through their employer to address sexual harassment claims; 
  • Information on administrative complaint processes, available through the New York Commission on Human Rights (NYCCHR), the NYSDHR, and the United States Equal Employment Opportunity Commission, including contact information; 
  • Information on available remedies for victims of sexual harassment under Federal and State laws;
  • Examples of and information on the prohibition on retaliation;
  • Information concerning bystander intervention; 
  • Information on the responsibilities of Supervisors/Managers and prohibited conduct; including information on the prevention of sexual harassments and retaliation and measures that such employees may take to appropriately address sexual harassment complaints. 
The NYC Act defines "interactive" training as participatory teaching, which means that there must be some form of trainee-trainer instruction but the training doesn't need to be live or in-person. While the NYS law doesn't define "interactive", it is anticipated that this will be defined once the model training program is released and will most likely mirror the city's Act. 

In addition to the mandatory anti-harassment training, all employers must create and distribute an anti-sexual harassment policy to employees by October 9, 2018 which includes a standard complaint form and a statement informing employees of the available mediums to address their sexual harassment claims. The policy should also address the expansion of the New York State Human Rights Law’s protections against harassment to “non-employees.”  Yup...your eyes do not deceive you - the law, as amended, now requires companies to not only protect their employees, but also Independent Contractors, vendors, interns, temps, and anybody else who could potentially be subject to prohibited conduct while on the company's premises. 

In addition, make sure to review and employment contracts and separation agreements, if you have them. Effective July 11, 2018, any agreements that required mandatory arbitration of sexual harassment claims became enforceable. Additionally, employers may not include confidentiality provisions in an agreement settling a sexual harassment claim, unless the employee consents.
If you have any questions, are in need of sexual harassment training, review/revision/creation of policies, procedures, and/or practices, please email us or visit our website