By now, our readers are aware that New York State and City law require annual workplace sexual harassment prevention training. The State law requiring such training took effect last October, and mandates that employers complete the initial training by October 9, 2019. The separate City law became effective just a few weeks ago, on April 1. It requires that covered employers – meaning businesses with 15 or more employees in NYC – comply with the City-specific training requirements by year-end.
In conjunction with the rollout of the City law, the NYC Commission on Human Rights (NYCCHR), the agency tasked with administering the law, issued a series of FAQs to help employers navigate their new training-related obligations. The FAQs – which are not binding law, but do suggest how the NYCCHR will interpret and enforce the law – provide valuable insight. Consistent with the NYC Human Rights Law’s (NYCHRL) definition of “employee,” for instance, the FAQs note that “[a]n employer is required to train independent contractors who have performed work in the furtherance of the business for more than 90 days and more than 80 hours in a calendar year.” As the NYCCHR explains, “independent contractors – regardless of the number of days or hours they work – are considered employees for the purposes of determining whether an employer is obligated to provide the annual sexual harassment training.”
Perhaps the most interesting aspect of the FAQs, however, is the suggested scope of which employees need to be trained. According to the NYCCHR, employers must provide training to individuals who work, or spend a portion of their time working, in NYC. This is neither surprising nor controversial. However, the NYCCHR also takes the position that any individual who “interacts with employees in New York City, even if they’re based elsewhere, must be trained.”
This position – which appears even to be broader that the “impact” test that courts typically use to evaluate NYCHRL claims – is entirely novel. Practically speaking, it means that multi-jurisdictional businesses with operations in NYC should, out of an abundance of caution, consider providing NYC-compliant sexual harassment prevention training to all employees, regardless of location (unless the employer is certain that a particular employee or group of employees does not and will not have contact with its NYC-based employees).
As noted above, the NYCCHR’s FAQs do not carry the force of law. Nevertheless, compliance with the FAQs is strongly recommended, particularly given the substantial penalties for non-compliance with City law. If you have any questions or concerns about the City’s new training requirements and/or the accompanying FAQs, Reed Smith’s experienced Labor, Employment, and Benefits Group is ready to speak with you. For more information regarding this matter, please contact your Reed Smith attorney.