Part 1: Are You in Compliance with New Sexual Harassment Training Laws?

As a result of the #MeToo movement and the highly public sexual harassment cases in the last few years, the latest HR updates in 2020 haven’t just been about COVID. There have been many new laws and regulations surrounding sexual harassment training, especially in the last few years. While these may have initially been forgotten amid the other HR updates for the pandemic, they’re still important to keep in mind—especially as teams return to the workplace. (It’s also important to remember that harassment happens in the virtual workplace, as well. The prohibition of virtual harassment can and should be addressed in your non-harassment and technology use policies.) Staying updated on these laws, as well as providing sexual harassment prevention training, is the best way to establish that this type of conduct will not be tolerated in the workplace. These steps are also critical in reducing a workplace’s exposure to risk. Sexual harassment policies and training mitigate legal liability and monetary damages, help employers avoid PR nightmares, and provide a potential affirmative defense against hostile work environment claims (if certain criteria are met).

As many as 15 states have passed new laws to protect workers from sexual harassment in the last three years. Even in states that don’t have new laws on the topic, it will be important to see the precedents set. Often, they’re just signs of a bigger legislative trends that eventually hit other states or are implemented at a federal level. Even if for employers with no specific state mandate in their location, providing sexual harassment training is still an HR best practice across the board. Even if they don’t require it currently, many states strongly encourage employers to conduct training.

MP will cover this topic in a two-part series, focusing first on California, New York, and Connecticut. Check back tomorrow, November 4^th, for the next installment and legal requirements for Illinois and Delaware.

Please note that this material is intended for educational and informational purposes only. It is not intended to constitute legal advice.

Sexual harassment training laws and regulations in California:

California generally has some of the most comprehensive legal protections for workers. It’s also frequently a state that passes labor laws that are harbingers of larger, widespread state trends. California law has been amended many times since its original enactment in 2004. The most recent significant changes require training that must be met by January 1, 2021.

• AB9: The SHARE (Stop Harassment and Reporting Extension) Act. This is an extension of Fair Employment and Housing Act (FEHA) Statute of Limitations. It will allow people to file workplace harassment-related retaliation complaints for up to three years. (Previously it was only one year, and federal standards are currently only 180 days.)

• Effective Jan. 1, 2015, amendment AB 2053 requires all California employers subject to the mandatory training requirement under AB 1825 to include a component on preventing “abusive conduct.”

• Effective Apr. 1, 2016, California’s FEHA regulations were revised to clarify and expand the protections, employer actions and training requirements.

• Effective Jan. 1, 2018, SB 396 expanded required training for supervisors to prevent sexual harassment to include gender identity, gender expression and sexual orientation.

• SB 1343 amended the FEHA regulations and requires businesses with five or more employees to provide sexual-harassment-prevention training to all workers by Jan. 1, 2020, and every two years thereafter. SB 778 later extended this deadline to Jan. 1, 2021. 

• General legal requirements for workplace harassment training:
  • All employers with five or more employees must train their new hires within six months of their hire or supervisory promotion date. (Note that employers are required to train California-based employees as long as they employ five or more employees anywhere, even if they do not work at the same location, and even if not all of them work or reside in California.) Affected employers must keep a record of training for all employees for at least two years. This training must include guidance on the federal and state statutory provisions surrounding the prevention and correction of sexual harassment, discrimination, retaliation, abusive conduct, and the recourses that victims of sexual harassment have access to. Training must also discuss harassment based on gender identity, gender expression, and sexual orientation. Training needs to be presented by experts in the field. It needs to supply practical examples of guidance specifically for supervisors on how to prevent harassment, discrimination, and retaliation. California has released free sexual harassment training programs (that don’t require any signing up or information given) here. Participants can receive a certificate of completion that can be saved by the employer for their records.
  • By January 1, 2021, any employers with five or more employees must provide two or more hours of interactive sexual harassment training and education to all staff members who have supervisor duties. All employees with non-supervisor duties must receive at least one hour of interactive education and training. Thereafter, employers with five or more employees must provide harassment training every two years. New nonsupervisory employees must be provided training within six months of hire. New supervisory employees must be provided training within six months of the assumption of a supervisory position. 
    

Sexual harassment laws and regulations in New York

Both New York state and New York City have passed legislation to protect workers from, as well as prevent, harassment.

Training: New York State law covers New York City employees. Where the state law provides greater protections or requirements, it supersedes New York City law. According to state law, all Employers must provide sexual harassment training as soon as possible for new hires. (State-wide, employers must provide sexual harassment training on an annual basis thereafter. They must be able to produce confirmation that employees have been trained within the last 12 months. At the city level, documentation must be retained for at least 3 years. The state provides free training videos here and the New York City Commission on Human Rights provides an interactive training video here. Neither video must be used. An employer can use their own training, as long as it meets city and state requirements.

Notice and Posting requirements: All employees in the state of New York must be provided with a notice for sexual harassment prevention either before or during their first day of work, as well as during their annual sexual harassment training. This notice needs to be provided in English and the employee’s primary language. The notice must include the employer’s sexual harassment policy, as well as information presented at the current or previous sexual harassment training. In New York, all employers must ‘consciously display’ an anti-sexual harassment rights and responsibilities poster (in both English and Spanish) in an employee breakroom or any other places where workers gather. Additionally, New York City employers must also provide new hires with written notice of their rights under the Human Rights Law. The NYC Commission on Human Rights provides the Stop Sexual Harassment Act Factsheet which can be found here.

Sexual Harassment training laws in Connecticut

All employers with three or more employees are required to provide two hours of sexual harassment training to all their employees. Employers with less than three employees are required to provide training to supervisory employees, with additional stipulations. This training was originally scheduled to be completed by October 1^st, 2020, or within six months of hiring. Because of the challenges that COVID-19 has imposed, the October 1^st deadline has been extended to January 1^st, 2021. Regardless of the employee count, the training must include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment. Employers must provide periodic, supplemental training to update all supervisory and nonsupervisory employees regarding the training content no less than every 10 years. Training records should be retained for one year after the completion of the training. If employers fail to provide training, they could incur fines of up to $1,000.

Click here for Part 2 of New Sexual Harassment Training Laws