New York and New York City Online Sexual Harassment Training

All employers, regardless of size, must provide harassment prevention training to all employees.

According to the final guidance issued by the state, an “employee” includes all workers, regardless of immigration status. “Employee” also includes exempt or non-exempt employees, part-time workers, seasonal workers, and temporary workers.

Minor employees, such as child actors, are required to take sexual harassment prevention training. However, those employing children under the age of 14 may opt to simplify the harassment prevention training and sexual harassment prevention policy, while still meeting the minimum requirements.

Only employees who work or will work in the state need to be trained. However, if an individual works a portion of their time in New York State, even if they’re based in another state, they must be provided with harassment prevention training.

An agency or any other worker organization (e.g. labor union) may choose to provide harassment prevention training to workers; however, the employer may still be liable for the employee’s conduct and understanding of policies and should train the employee on any nuances and processes specific to the company or industry

The learning objectives for New York supervisors in the Sexual Harassment Prevention Training course typically include the following:

• Understanding Sexual Harassment:
  • Define sexual harassment and identify different forms it can take.
  • Recognize behaviors that constitute sexual harassment.
• Legal Framework:
  • Understand federal, state, and local laws regarding sexual harassment.
  • Learn about the rights and responsibilities of employers and employees under these laws.
• Employer Responsibilities:
  • Comprehend the responsibilities of employers in preventing and addressing sexual harassment.
  • Understand the importance of maintaining a harassment-free workplace.
• Supervisory Responsibilities:
  • Learn the specific roles and responsibilities of supervisors in preventing and responding to sexual harassment.
  • Recognize the importance of setting an example and creating a respectful workplace culture.
• Complaint Procedures:
  • Understand the procedures for reporting and handling complaints of sexual harassment.
  • Learn how to conduct investigations and maintain confidentiality.
• Retaliation:
  • Identify what constitutes retaliation and understand that it is illegal.
  • Learn how to prevent and address retaliation against individuals who report harassment.

All contractors who bid on contracts to provide goods or services to the NYS government or any state agency where competitive bidding is required must certify under penalty of perjury that they have a sexual harassment policy and that they provide annual sexual harassment training to all employees, even those outside of the state.

Specifically, the bid must include the following language: “By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing sexual harassment prevention in the workplace and provides annual sexual harassment prevention training to all of its employees.” (State Finance Law, Section 139-L).

The New York State Human Rights Law imposes liability on employers for the actions of independent contractors, subcontractors, vendors, or consultants; thus, employers are also encouraged to provide their sexual harassment prevention policy and sexual harassment prevention training to anyone providing services in the workplace, in addition to employees.

The NY State final guidance encourages training of new employees as soon as possible, noting that employers may be liable for the actions of employees immediately upon hire.

The law requires that employers provide a sexual harassment prevention policy and harassment prevention training on an annual basis to all employees. An employer may choose to deem the training requirement satisfied if a new employee can verify completion through a previous employer or through a temporary help firm.

Employers are not required to (but are encouraged) to keep a signed employee acknowledgment of having read the sexual harassment prevention policy and a copy of all harassment prevention training records, as these records may help address future sexual harassment complaints or lawsuits.

NY State’s final guidance says that harassment prevention training may be in-person or online, so long as it is “interactive”. Interactivity requires employee participation. Examples of employee participation include:

If the training is web-based, and the employee must select the right answer when asked questions at the end.
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. (Clear Law’s harassment prevention training allows users to submit questions and Clear Law – or the client – answers the questions promptly.)
In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions.
Web-based or in-person training that provides a Feedback Survey for employees to turn in after they have completed the training.
According to NY 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.”

Employers who had 15 or more employees at any given point in the previous calendar year must provide sexual harassment training to their staff.

If a short-term employee, part-time employee, intern, independent contractor, or freelancer works:

• more than 80 hours in a calendar year AND
• for at least 90 days,

then the individual must be trained.

In October 2019, Int. 136-A was enacted, which extends the employment protections of the New York City Human Rights Law (“NYCHRL”) to freelancers and independent contractors, allowing these workers to file discrimination, harassment, and retaliation complaints with the New York City Commission on Human Rights and bring suit in court. It also explicitly required employers to train independent contractors and freelancers who meet the minimum requirements for training. It clarified that employees need not take the training at each workplace they work over the course of a year; independent contractors and freelancers can provide proof of completion of sexual harassment training each year to multiple workplaces. These changes went into effect on January 11, 2020.

Applicability to Employers and Employees Based Outside of New York City

According to guidance issued by the City:

• Any worker (including employees interns, freelancers, and independent contractors) who work or will work in New York City for more than 80 hours in a calendar year AND for at least 90 days must be trained, regardless of whether the employer is based in New York City.
• If a worker is based elsewhere but regularly interacts with other employees in New York City, even if they are not physically present in the City, they should be trained.

According to guidance issued by the city, employers should provide sexual harassment prevention training to new employees (and interns, freelancers, and independent contractors) as soon as possible after hire. NYC’s guidance notes that employers are liable for sexual harassment by new employees as soon as they are hired.

Employers are required to train employees who will work more than 80 hours in a calendar year and will work for at least 90 days. New employees who work 80 or more hours per year, on a full or part-time basis, in New York City, must be trained after 90 days of hire.

Employers shall keep a record of all sexual harassment prevention training, including a signed employee acknowledgment, which may be electronic. Employers shall maintain such records for at least three years and such records must be made available for commission inspection upon request.

Under New York City's Act 0632, the following individuals are required to complete harassment prevention training:

1. Employers with 15 or More Employees: This includes companies that have at least 15 employees in total. Importantly, this count must include interns, regardless of their employment status.
2. All Employees: Both full-time and part-time employees are obligated to undergo this training. It is not limited to permanent staff; even temporary or seasonal workers must participate.
3. New Hires: Any new employee must complete the training within the first 90 days of their employment. This ensures that everyone is informed about harassment prevention from the start of their association with the company.
4. Annual Renewal: The training is not a one-time requirement. Employees must retake the training every year to stay compliant with the regulations.

By adhering to these requirements, organizations can ensure they are in full compliance with New York City's harassment prevention laws.

Yes, this course fully complies with the ACT 0632 requirements set by both New York State and New York City.

Understanding Identity and Federally Protected Characteristics

Identity is a multifaceted concept encompassing the attributes, beliefs, values, and experiences that define who we are as individuals. It influences how we see ourselves and how we are seen and understood by others.

Every individual's identity can include elements such as ethnicity, gender, age, or religion. These components can interact in complex ways, contributing to a unique personal narrative. While identity is intrinsic to each person, certain characteristics are legally recognized and shielded under federal law to prevent discrimination.

The Eight Federally Protected Characteristics

1. Race
   Protection against discrimination based on skin color or ethnic group, ensuring all races are treated equally.
2. Color
   Refers specifically to skin pigmentation or complexion. Individuals are protected from biases based solely on skin color.
3. Religion
   Safeguards individuals from discrimination due to their religious beliefs, practices, or lack thereof.
4. Sex
   Encompasses gender identity and sexual orientation, aiming to prevent gender-based discrimination.
5. National Origin
   Protects individuals from unfair treatment due to their country of origin, ancestry, or ethnic background.
6. Age
   Generally focused on protecting employees aged 40 and above from age-related discrimination in the workplace.
7. Disability
   Offers protection to individuals with physical or mental impairments, ensuring equal opportunities in employment and public access.
8. Genetic Information
   Protects against discrimination based on genetic information, such as family medical history, preventing misuse in employment and insurance contexts.

By recognizing and respecting these characteristics, society works toward fostering an inclusive environment where everyone can thrive free from prejudice. Understanding these fundamentals is essential in promoting equality and justice across various social and professional landscapes.

Yes, this course fully complies with the ACT 0632 requirements set by both New York State and New York City.

Limitations on Non-Disclosure Agreements. Effective July 11, 2018, New York State prohibits the use of a nondisclosure agreement (“NDA”) as part of the settlement of a sexual harassment claim, where the NDA would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment. An NDA is prohibited unless the complainant prefers such a provision. If the complainant indicates that he or she prefers an NDA, the employer must give the complainant 21 days to consider the NDA, and then memorialize the complainant’s preference for an NDA in writing, signed by all parties. The complainant then has an additional 7 days to revoke the preference for an NDA. The New York State law requires that the 21-day consideration period expire (and cannot be waived or shortened) before the complainant’s preference can be memorialized, and the minimum 7-day revocation period cannot start until after. These limitations on the use of NDAs now apply not only to sexual harassment claims but to all types of harassment, discrimination, and retaliation claims under New York law.

Limitations on Arbitration Agreements. In 2018, New York prohibited employers from requiring employees to arbitrate sexual harassment claims, unless it was part of a collective bargaining agreement. In 2019, New York State expanded the prohibition of mandatory arbitration clauses to include not just sexual harassment claims, but also any discrimination or retaliation claim. (However, in June 2019, in the case of Latif v. Morgan Stanley, a federal judge in the Southern District of New York ruled that the ban on arbitration of sexual harassment claims conflicts with the Federal Arbitration Act [“FAA”], and is therefore unenforceable.)

Employers should take the following steps:

• Determine if these laws apply to your organization.
  • Do you have any employees (including interns, freelancers, or contractors) working in New York or New York City?
  • Does your organization bid, or plan to bid, on a New York state or New York City contract?
• Review your policies, arbitration agreements, and NDA’s.
  • Update your existing harassment policy to meet the requirements of these laws or provide your employees with the model sexual harassment prevention policy.
  • Review your current arbitration agreements and NDA’s with employees.
• Posting
  • Comply with poster and “fact sheet” requirements.
• Training
  • Ensure that your sexual harassment prevention training is updated to address the new content requirements of the New York State and New York City laws. Clear Law Institute offers one course that covers the requirements of both the New York State and New York City laws.
  • Insert your updated policy in your harassment training course.
  • Ensure that you provide instruction on your internal policies for receiving and investigating sexual harassment complaints.
  • If using online sexual harassment prevention training, determine who will answer questions submitted by users. (Traliant offers to answer questions on behalf of its clients.)
  • Train all covered employees each year.

Remember to review the FAQ above on the training obligations and training content requirements.