Employers in California and New York must now meet new requirements to provide sexual harassment prevention training to all of their employees. Do you know how your company plans to comply?
We hosted a webinar, led by me and Simone Francis, Shareholder, Ogletree Deakins. There were a few recurring questions that came up during the session, which we are answering here.
Do California-based companies with teams that visit clients in New York need to have employees trained in New York’s requirements?
It depends on whether the out-of-state employee will work at your New York location. If the employee only works outside of New York, the training mandate does not apply. If, however, the employee spends part of their time in New York, you need to provide the training. According to the New York government site, employees who work a portion of their time in New York, even if they are based in another state, must be trained to the state’s standards (see A7 in the “Training” section of the FAQs).
If you have employees in New York and California, one option is to provide California training, with some added content related to New York (state and city) law, to employees in both states. Since California’s training content requirements are more robust than New York’s, you might use this strategy to streamline your training. For example, in California, training must include guidance on abusive conduct, gender identity, gender expression, and sexual orientation.
There are, however, four exceptions you should note:
- Bystander intervention training is required in New York City, although the New York state law has no requirement on this topic. California encourages this training. If you’re using one training for both states, make sure your training includes practical tips for witnesses to go from passive bystanders to active upstanders.
- There are a number of nuances related to the legal elements required to prove unlawful sexual harassment under New York state and New York City laws, so make sure your training addresses these nuances.
- Internal complaint forms must be provided per New York state law for New York employees. You can find the model complaint form here, or your organization can create a customized complaint form based on the model. This should be distributed at the time of training.
- Contact information for local, state and federal enforcement agencies is also required to be provided in New York if the employee wants to lodge an external complaint, so be sure to include this information (about the state and city) in your training sessions.
Assuming your California-compliant training includes the above four points (bystander intervention, legal elements specific to New York, and information on raising complaints internally and externally), you should be able to use one training session to comply with both New York and California requirements.
What determines which online training programs meet all qualifications for harassment training?
While online training offers a great option for organizations with large or spread out workforces, not all online programs are created equal.
Any online program must contain the required content (as dictated by state law) and must be developed by true subject matter experts—those that:
- Are well-versed on the law,
- Have experience dealing with the relevant workplace issues,
- Have written and enforced policies,
- Have conducted workplace investigations,
- And understand the skills necessary to reduce workplace strife (such as improving communication skills and honing conflict resolution skills).
Beyond the content requirements, an effective online training program must be interactive. This means:
- The program can’t be a simple “plug-and-play” program that doesn’t require learners to stay active and engaged during the training.
- Learners must be given the chance to ask questions of the subject matter experts who developed the training. This the best way to replicate the interactive exchange that occurs during live training between trainer and learner.
- Online training needs to be engaging, nuanced and relevant. Without this, your employees will tune out and the goal of the training—to increase understanding and affect behavior—will not be met.
For employees that hold jobs at multiple companies and receive the necessary training through employer A, does employer B need to retrain the employee or can they accept a certificate of completion?
You can accept proof of training from a previous (or another) employer as long as the previous training:
- Meets the minimum requirements in terms of content and interactivity.
Took place within the required time frame (within one year since NY requires annual training).
- It can be difficult to show that prior training meets the training mandates by simply looking at a certificate of attendance, and you will likely need to ask some questions to ensure compliance.
If you want to be on the safe side, you can provide your own training that complies with the legal requirements (and hopefully, goes above and beyond the requirements by focusing on practical issues that are more likely to affect behavior).
Do contractors that come through an agency need to be trained by the business they are working on a project for or should they be trained by their employer (the agency)?
The New York state guidelines provide a Q&A on this topic (see “Training”):
“Q6. What are the obligations of employment agencies? What about employees who received the same training from another employer within the past year?
A6. 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. 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.”
How many hours of training must managers and employees receive in California?
In California, managers must receive two hours of training every two years. Non-supervisory employees must receive one hour of training every two years.
Do you have advice for employers with locations in other states other than New York and California? Should all employees in all locations be trained?
At Emtrain, we have long advocated for employers to train all employees regarding harassment. While many organizations have resisted doing so, the #MeToo movement has made it clear that a root cause of workplace misconduct, including workplace harassment, is a misunderstanding of behavioral expectations and a failure to promote a culture of inclusion and respect.
Take a look at this article to learn more about the benefits of training all employees. If you need assistance with your sexual harassment prevention program, request a free trial of our sexual harassment prevention course.