online anti sexual harassment training

1. online anti sexual harassment training New York State and New York City Sexual Harassment Training Laws Michael Johnson, J.D., CEO, Clear Law Institute* This article details the current requirements under New York State and New York City sexual harassment training laws, including legislation enacted in 2018 and 2019, and updated guidance issued by New York State in October 2019 and New York City in January 2020. (Learn more now about Clear Law’s online New York sexual harassment training.) New York State Sexual Harassment Training By October 9, 2019, all employers should have provided sexual harassment training to all employees located in New York State. Going forward, employers must provide sexual harassment training to all

2. employees each year. 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. Court decisions and regulations from around the country have made clear for years that all employers should provide harassment prevention training. At the same time, California, Connecticut, Delaware, Illinois, Maine, and New York State and New York City have specifically required sexual harassment training by state statute. 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. (California, Connecticut, Delaware, Illinois, and Maine also require training for all employees.) ● Requires that the training be provided annually. New York City Law The New York City law, “Stop Sexual Harassment in NYC Act,” applies to all employers with 15 or more employees, and requires annual sexual harassment training for all employees, interns, independent contractors, and freelancers in New York City. Employers in New York City must provide sexual harassment training to all employees and interns by December 31, 2019, and then must retrain each calendar year. On January 11, 2020, the sexual harassment training requirement in the New York City Human Rights Law (NYCHRL) was expanded in scope to include the requirement to train not just

3. employees and interns but also independent contractors and freelancers. The New York City law also requires training of certain employees based outside of New York City. Specifically: Any employees 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. This same threshold of 80 hours and 90 days is used to determine whether independent contractors and freelancers must be trained, regardless of location. If an employee 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. Both New York State and New York City laws detail specific content that must be addressed in the training. While New York State training content requirements are similar to content requirements in other states, New York City’s law goes beyond the training content that previously has been required in other jurisdictions. For example, the training provided to employees in New York City must: ● Address bystander intervention ● Describe the complaint process available through the New York City Commission on Human Rights, the New York State Division of Human Rights, and the United States Equal Employment Opportunity Commission, and provide employees with those agencies’ contact information The four tables below detail the obligations and the differences between the New York State and New York City laws regarding: 1. Training Requirements for New York State (Table 1)

4. 2. Training Requirements for New York City (Table 2) 3. Training Content for New York State (Table 3) 4. Training Content for New York City (Table 4) Table 1 Sexual Harassment Training Obligations in New York State Effective Date and Deadline First deadline was October 9, 2019. Employees must be retrained at least once per year. This may be based on the calendar year, anniversary of each employee’s start date, or any other date the employer chooses. For simplicity, most employers will likely use a calendar year. Employers and Employees Covered All employers, regardless of size, must train all employees. According to the final guidance issued by New York 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 training. However, those employing children under the age of 14 may opt to simplify the training and policy, while still meeting the minimum requirements. Only employees who work or will work in New York 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 trained.

5. An agency or any other worker organization (e.g. labor union) may choose to provide 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 Government Contractors Covered All contractors who bid on contracts to provide goods or services to the New York State 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 policy and training to anyone providing services in the workplace, in addition to employees. Effective February 8, 2020, the New York State Human Rights Law will apply to all employers regardless of size. How Often Employers must provide each employee with the training at least once per year. Employers can track completion based on the calendar year, the anniversary of each employee’s start date, or any other date the employer chooses. For simplicity and to coordinate with other

6. harassment training laws in New York City and in other states, most employers choose to track completion based on the calendar year. New 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 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. Recordkeeping Employers are not required to (but are encouraged) to keep a signed employee acknowledgment of having read the policy and a copy of all training records, as these records may help address future complaints or lawsuits. Interactivity NY State’s final guidance says that 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 online sexual harassment training allows users to submit questions and Clear Law – or the client – answers the questions promptly.)

7. ● 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.” Table 2 Sexual Harassment Training Obligations in New York City Effective Date and Deadline First Deadline was December 31, 2019, to have all employees trained. Retraining required each calendar year. Employers and Employees Covered 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.

8. In October 2019, New York City enacted Int. 136-A , 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. Government Contractors Covered While the law doesn’t explicitly require New York City government contractors to provide sexual harassment training, they will be required to describe their practices, policies, and procedures “relating to preventing and addressing sexual harassment” as part of existing reporting requirements.

9. How Often Must provide training to each employee each calendar year. New Employees According to guidance issued by New York City, employers should provide training to new employees (and interns, freelancers, and independent contractors) as soon as possible after hire. New York City’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. Recordkeeping Employers shall keep a record of all 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. Interactivity The training must be “interactive,” which is defined as “participatory.” Online training may suffice if it is interactive. Table 3 Harassment Training Content Requirements in New York State Sexual Harassment Definition and Examples An explanation of sexual harassment consistent with guidance issued by the New York State Department of Labor (NYSDOL), including

10. examples of conduct that would constitute unlawful sexual harassment. Applicable Laws 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. Reporting, External Forums of Adjudication, and Rights of Redress Information concerning employees’ rights of redress and all available forums for adjudicating complaints. Retaliation Training on retaliation is not specifically required by New York State law, but the law also notes that anti-retaliation provisions must be included in the employer’s policy. New York’s Human Rights Law prohibits retaliation against employees who file an internal or external complaint, testify, or assist in any investigation. Bystander Intervention No requirement to address bystander intervention. Supervisors’ Duties According to the New York State guidance, 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 that employers should inform all employees of supervisors’ and managers’ responsibilities for preventing and reporting sexual harassment.

11. Table 4 Harassment Training Content Requirements in New York City Sexual Harassment Definition and Examples A description of what sexual harassment is, using examples. Applicable Laws An explanation of sexual harassment as a form of unlawful discrimination under local law. A statement that sexual harassment is also a form of unlawful discrimination under state and federal law. Reporting, External Forums of Adjudication, and Rights of Redress The training must inform employees of the internal complaint process available to employees through their employer to address sexual harassment claims. It also must describe the complaint process available through the New York City Commission on Human Rights, the New York State Division of Human Rights, and the United States Equal Employment Opportunity Commission, including contact information. Retaliation The prohibition of retaliation, pursuant to subdivision 7 of section 8-107, and examples of protected activity under the law (such as opposing discrimination, filing a complaint, testifying on behalf of someone complaining about discrimination, and assisting in an investigation). Bystander Intervention

12. Information concerning bystander intervention, including but not limited to any resources that explain how to engage in bystander intervention. Supervisors’ Duties The specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures that such employees may take to appropriately address sexual harassment complaints. Required Distribution in Writing of Anti-Harassment Policy and Information Presented in the Employer’s Training Program According to the 2019 New York State legislation, employers must now provide employees in New York with a written “sexual harassment prevention notice” at the time of their hire and during annual sexual harassment training. The notice must include (1) the employer’s sexual harassment prevention policy and (2) the information presented in the employer’s sexual harassment prevention training program. Importantly, New York State’s guidelines “recommend” that employers “provide this notice prior to or at the beginning of [a new employee’s] first day of work.” If using an online training program, the guidelines indicate that an employer can meet this requirement to provide notice at the time of hire by providing the employee a link to take the training. To be cautious, Clear Law also provides a course outline that employees can download and print in addition to taking the online training. Employers must provide the required information in English and in the language identified by each employee as his or her primary language.

13. The state will publish a model policy in languages other than English (depending on the prevalence of each language in the state). New York employers are not required to provide their policy in another language if the state has not published a template in that language. Model Training New York City has created a model training that can be used by employers in New York City. New York State has developed a model training document that can be followed by employers to provide their employees with training. The State also created a video of someone reading through the training slides and sample scenarios. However, the State specifically cautions that simply showing the training video to an employee will not satisfy the State’s minimum training requirements, as this would not be considered “interactive.” If an employer chooses to use the video to meet its training requirements, it must also: ● Ask questions of employees as part of the program; ● Accommodate questions asked by employees, with answers provided in a timely manner; or ● Require feedback from employees about the training and the materials presented. According to New York State, during the interactive portion of the training, “employers should be prepared to address questions raised by employees including those specific to their industry, questions about the organization’s reporting process, and questions about how hypothetical cases would be handled.”

14. Of course, for many employers, the interactivity requirement will be challenging. Many employers may not have anyone with the appropriate level of expertise to facilitate harassment training and answer questions about harassment issues. An employer who provides the training with an unqualified facilitator runs the risk of providing non-compliant training and having the facilitator give inaccurate guidance. Most employers likely will turn to a third party with expertise in training on sexual harassment prevention, such as Clear Law Institute. Indeed, the New York City law explicitly states that its model training is designed to be a minimum threshold. Many employers will likely turn to expert providers of sexual harassment training: ● To provide comprehensive instruction on the topic. For example, the New York City law requires employers who will use its model training to separately instruct all employees on the employer’s internal complaint process for addressing sexual harassment claims. ● To ensure that the training complies with all 50 states’ requirements, not just the requirements of the State of New York and New York City. ● To ensure that the training provides legally accurate guidance. If an employer were to provide in-person training following New York State’s training script, for example, the trainer may not have the expertise to facilitate the training and accurately answer questions. ● To provide employees with “best-in-class” instruction that utilizes cutting-edge instructional design principles to help improve employees’ understanding of the principles taught.

15. ● To be able to answer questions from users (as required to meet the “interactivity” requirement). Users of Clear Law’s online training can ask questions and have those questions answered within one business day by Clear Law or a client official. ● To be able to efficiently track who has and who has not completed the training each year, which can be handled by a modern Learning Management System. ● To have their online training provider handle all technical support calls from their employees. Clear Law Institute will Update its Harassment Training at No Cost While many providers offer training on preventing workplace harassment, few have the legal and instructional design expertise required to comply with certain harassment training laws, such as those in New York. Clear Law Institute’s hundreds of clients can sleep well knowing that we monitor laws around the country to ensure that our training stays up-to-date with changes in the law. Indeed, we have updated our harassment course numerous times in the last three years to comply with new training laws. Clear Law Institute’s New York sexual harassment training is now ready to be delivered to your employees. If needed, Clear Law will modify its courses to comply with any changes in New York State or New York City laws. Importantly, Clear Law does not charge its clients to update its course content due to changes in the law. No Reruns

16. While sexual harassment training in New York is required every year, you should not have to force your employees to take the same training each year. Clear Law Institute is the only provider that delivers new sexual harassment training for its clients each year. Other Provisions of the New York State and New York City Sexual Harassment Laws 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

17. sexual harassment claims conflicts with the Federal Arbitration Act [“FAA”], and is therefore unenforceable.) Model Sexual Harassment Policy. As required by the New York State law, the New York State Department of Labor has developed a “model” sexual harassment prevention policy that includes a standard complaint form and a procedure for the “investigation of complaints” that ensures “due process for all parties.” Employers may either adopt this policy as their own or ensure that their policy includes all the mandated elements. According to the New York State final guidance, employers should distribute the policy to employees before beginning work. Employers must provide the policy to all employees in writing or electronically. If a copy is made available on a work computer, employees must be able to print a copy for their own records. Employers are not required to collect a signed acknowledgment of employees having read the policy, but employers are encouraged to keep a signed acknowledgment. Employers should also post copies of the sexual harassment policy in the workplace. The New York State law also expands protections under the New York State Human Rights Law for non-employees, specifically noting an employer may be liable for sexual harassment of contractors, subcontractors, vendors, and consultants where the employer knows or should know that harassment is occurring in its workplace and fails to take immediate and appropriate corrective action to stop the offending conduct. Given this, employers will want to ensure that their training addresses the prevention and reporting of harassment of such non-employees. Also, employers may be wise to offer their harassment prevention training to non-employees, especially contractors, subcontractors, and consultants. At the New York City level, the Stop Sexual Harassment in NYC Act has modified the New York City Human Rights Law (NYCHRL) to now cover employers with fewer than 4 employees, interns, independent contractors, and freelancers for gender-based harassment claims. In amendments to the NYCHRL in October 2019, a covered “employer”

18. was defined to explicitly exclude any employer “that has fewer than four persons in the employ of such employer at all times during the period beginning twelve months before the start of an unlawful discriminatory practice and continuing through the end of such unlawful discriminatory practice.” These amendments also state that parents, spouses, domestic partners, or children of an employer who are employed by that employer must be counted when determining coverage as must independent contractors who work “in furtherance of an employer’s business enterprise,” regardless of whether the contractors themselves are employers. Posting Requirements. The New York City Commission on Human Rights has created a poster and information “fact sheet.” As of September 9, 2018, all employers in NYC must post an anti-sexual harassment rights and responsibilities poster in English and Spanish and provide an information fact sheet on sexual harassment to each employee at the time of hire (which can be included in an employee handbook). To receive a copy of the posters and fact sheets, please contact us. The New York State sexual harassment policy indicates that employers must post their sexual harassment policy “prominently in all work locations and be provided to employees upon hiring.” Lower Burden of Proof. New York State has lowered its burden of proof for workplace harassment claims. Harassment based on any protected characteristic is now unlawful “regardless of whether such harassment would be considered severe or pervasive,” which is the standard under federal law. Plaintiffs now need only to demonstrate that the harassment subjected him or her to “inferior terms, conditions, or privileges of employment” for the harassing behavior to violate New York State law. New York City eliminated its “severe or pervasive” standard in 2005. An employee bringing a harassment or retaliation claim in New York City only needs to show that the alleged conduct is more than “petty slights and trivial inconveniences.” “Faragher-Ellerth” Affirmative Defense Eliminated. New York State has eliminated the “Faragher-Ellerth” affirmative defense

19. that employers can use under federal law. An employer may be able to avoid liability by showing: (1) the employer tried to prevent and correct harassing conduct; and (2) the employee unreasonably failed to take advantage of the employer’s preventative or corrective opportunities (for example, the internal complaint procedures). Now, under New York law, “[t]he fact that such individual did not make a complaint about the harassment to such employer shall not be determinative of whether such employer shall be liable.” Statute of Limitations Extended. Claimants now have three years to bring a sexual harassment claim under New York State law, whether they file with an administrative agency or in court. Previously the statute of limitations was one year if filing with administrative agencies. Employers May Face Punitive Damages. New York State law now allows for punitive damages against employers in harassment, discrimination, and retaliation lawsuits brought under state law. Attorneys Fees Granted to Prevailing Party. The New York State Human Rights Law now provides that an employee who prevails before a court or the Division of Human Rights “shall” receive attorneys’ fees. In the past, such awards were discretionary. Employers who prevail may only seek attorneys’ fees if the employer can show that the plaintiff’s case was frivolous (continued in bad faith). The Law Construed to Maximize Deterrence. New York State law must now be construed liberally to “maximize deterrence of discriminatory conduct.” What To Do Now Employers should take the following steps:

20. ● Determine if the New York State and New York City 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 the New York State and New York City laws. ○ Review your current arbitration agreements and NDA’s with employees. ● Posting ○ Comply with poster and “fact sheet” requirements. ● Training ○ Ensure that your harassment 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 complaints.

21. ○ If using online training, determine who will answer questions submitted by users. (Clear Law offers to answer questions on behalf of its clients.) ○ Train all covered employees each year. Remember to review the tables above on the training obligations and training content requirements. Learn More Clear Law Institute continually monitors updates to federal and state laws to ensure that its online training is legally accurate and up-to-date. Clear Law Institute’s online course, Positive Workplace: Preventing Harassment at Work is used by hundreds of employers across the nation, including several Fortune 500 companies. Learn more about and view a free course demo of Positive Workplace. About the Author Michael Johnson, CEO of Clear Law Institute, is a former U.S. Department of Justice attorney who brought one of DOJ’s first “pattern or practice” sexual harassment cases. He has provided training and consulting on harassment prevention and investigations to organizations around the world, such as the EEOC, the United Nations, and Google. He is a graduate of Duke University and Harvard Law School. Read more about Michael here.