NYC Commission Provides Guidance on New NYC Sexual Harassment Law
The Stop Sexual Harassment Act, New York City’s new sexual harassment law, applies to all employers regardless of size. The law places new training and notice obligations on employers operating in the City, however many specifics about the training portion of the law are still unknown. The notice requirements are already in effect. The training requirements do not come into effect until April 2019. Recently, the New York City Commission on Human Rights revised its responses to the “Frequently Asked Questions” (FAQs) regarding the new law, giving us a glimpse into what is to come for NYC employers in regard to training employees.
Guidance from the FAQs
The law has a mandatory training component for employers with 15 or more employees. This threshold is unlike the New York State law which mandates similar training, even if you only have one employee! For now, the FAQ responses provide good insight into how the Commission plans to interpret the new law, although that could change. Some key points are:
- To determine if an employer has 15 or more employees, the employer must consider the number of employees it had employed at any point during the prior calendar year.
- Independent contractors are included in this head count regardless of the number of hours they worked on the employer’s premise.
- Employers are required to train employees who work more than 80 hours and at least 90 days in a calendar year. This means employers will be required to train part-time or short-term employees who meet this hours and days requirement.
- Employers are required to train independent contractors who have performed work in furtherance of the business for more than 90 days and more than 80 hours in a calendar year. Of course, “furtherance of the business” is a yet undefined term.
Take this latest round of guidance with a grain of salt. As of October 24, 2018, the Commission informed our Firm these responses are not final.
So, What Does all this Mean for Employers?
Since early September, all New York City employers have been required to post a notice concerning this new law and provide a fact sheet to new employees. The notice and fact sheet (which are almost identical) are available on the New York City Commission on Human Right’s website and can be found here: https://www1.nyc.gov/site/cchr/law/stop-sexual-harassment-act.page
The Commission’s stated position regarding training independent contractors is a huge expansion from existing law. For employers, one of the benefits of using independent contractors is avoidance of training obligations. That is now lost, at least in part. Moreover, small companies with minimal employees will be required to conduct training when they utilize the services of independent contractors since they are included in the head count. This too is a big change.
While this interpretation (and all other interpretations) may change, Employers should contemplate now how they are going to comply. Existing tracking mechanisms, even for large companies, will not capture all of the individuals who need to be trained – since those systems likely do not count independent contractors.
Employers are required to conduct the required training on an annual basis. Therefore, they should put into place a system to ensure training is done on a timely basis and accurately tracked by the employer. While eventually, this will all be old hat to employers in New York State and New York City, there are inevitably going to be growing pains associated with these major changes. Competent labor and employment counsel can assist in navigating this new territory.
Brody and Associates regularly provides training and counseling on maintaining a harassment free environment and on employment law issues in general. If we can be of assistance in this area, please contact us at email@example.com or 203.454.0560.