In the wake of the #MeToo movement, many states have amplified their sexual harassment prevention efforts, some of which require employee training. Here, we answer frequently asked questions about sexual harassment training.
Q: Am I required to provide sexual harassment training?
A: Several states and local jurisdictions require employers to provide sexual harassment training, including:
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Jurisdictions
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Training Requirements
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California
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In 2018, California expanded its training requirement to cover employers with five or more employees and to require training of both supervisors and employees. Employers with 50 or more employees were already required to provide training to supervisors. Now they too must provide a one-hour training to nonsupervisory employees. These new requirements must be met by January 1, 2020.
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Connecticut
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Employers with 50 or more employees must provide at least two hours of training in a classroom-like setting.
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Delaware
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Effective January 1, 2019, employers with 50 or more employees must provide interactive training regarding the prevention of sexual harassment.
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District of Columbia
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Effective date still unknown. Employers must provide tipped employees, managers, and owners with tipped employees harassment training every two years, online or in person (the training for managers must be conducted in person).
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Maine
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Employers with 15 or more employees must provide sexual harassment training.
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New York State
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All employees must complete training by October 9, 2019.
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New York City
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Effective April 1, 2019, employers with 15 or more employees must coordinate compliance with both NYC and New York State training requirements. Employers with less than 15 employees must comply with just New York State requirements.
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Your state may also have industry-specific requirements. For example, California has additional requirements for employees who provide janitorial services. Even if you aren't required to provide sexual harassment training, it is a best practice to do so.
Q: Are all employees required to receive sexual harassment training?
A: It varies by jurisdiction. Here are some general guidelines for who is covered by training requirements in each jurisdiction.
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Jurisdictions
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Who Is Covered
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California
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Employees and supervisors.
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Connecticut
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Supervisors.
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Delaware
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Employees and supervisors.
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District of Columbia
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Tipped Employees, managers of tipped employees, and owners with tipped employees.
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Maine
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Employees, supervisors, and managers.
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New York
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All employees, regardless of immigration status, including exempt and non-exempt employees, part-time workers, seasonal workers, and temporary workers.
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New York City
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Interns and employees, including supervisors and managers. In some situations, independent contractors must be trained, according to the city.
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Some of these laws require supervisors/managers to receive separate, specialized training. Review applicable laws and agency guidance carefully to determine exactly who must be trained.
Q: What must be covered in harassment training?
A: These laws typically have very specific requirements for the content of the training. For example, New York State requires that the training:
· Include an explanation of sexual harassment consistent with guidance issued by the New York Department of Labor in consultation with the Division of Human Rights;
· Include examples of conduct that would constitute unlawful sexual harassment;
· Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
· Include information concerning employees' rights of redress and all available forums for adjudicating complaints; and
· Include information addressing conduct by supervisors and any additional responsibilities for such supervisors.
In Maine, employers must use a compliance checklist published by the Maine Department of Labor to develop a training program.
Check your state or local law for details on training content.
Q: Can I just play a video to comply with these laws?
A: The laws typically require that, at a minimum, training be interactive. A program that requires an employee to watch a training video, with no feedback mechanism or interaction, generally wouldn't be considered interactive under these laws.
Q: When and how often is sexual harassment training required?
A: Here is a general overview of the timing of the state and local training requirements:
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Jurisdictions
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Training Frequency
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California
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Within six months of assuming a supervisory or nonsupervisory position and once every two years thereafter.
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Connecticut
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Within six months of assuming a supervisory position.
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Delaware
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New employees/supervisors: within one year and every two years thereafter;
Existing employees: within one year of January 1, 2019, and every two years thereafter.
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District of Columbia
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Employees hired after the law takes effect must receive training within 90 days of their date of hire, unless they have participated in such training within the past two years.
Employees hired before the law takes effect must receive training within two years of the effective date.
Managers, owner and operators must receive training at least once every two years.
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Maine
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Within one year of their start date.
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New York
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Annually. The initial annual training must be completed by October 9, 2019. New hires should receive the training as soon as possible.
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New York City
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Annually. New hires generally must be trained within 90 days of their date of hire.
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Q: Am I required to keep a record of the training I provide?
A: The states with training requirements typically require employers to keep certain records, such as who received the training and when, and the content of the training. Depending on the jurisdiction, these records must be retained for two or three years. Even if not required to do so, it is a best practice to keep a record of:
· The names of the individuals trained;
· The date of the training;
· The sign-in sheet for the training;
· A copy of all certificates of attendance or completion issued;
· The type of training (some of the laws have restrictions on the types of training that may be provided);
· A copy of all written or recorded materials used for the training; and
· The name and qualifications of the training provider.
Q: Do I have to pay employees for the time they spend in harassment training?
A: Yes, employees must be paid for mandatory training. Under the federal Fair Labor Standards Act there are only four instances in which non-exempt employees need not be paid. In such cases, the training must meet all four of the following elements:
· Attendance is outside of the employee's regular working hours;
· Attendance is voluntary;
· The training is not directly related to the employee's job; and
· The employee does not perform any productive work during such attendance.
Sexual harassment training generally won't meet all of the four criteria and therefore must be paid.
Q: I’ve heard of something called bystander intervention training. What is that?
A: Bystander intervention training is designed to help bystanders recognize potentially problematic behaviors and take personal responsibility for taking action (intervening) when they observe these behaviors. In 2018, California passed a law that makes clear that employers that are subject to the state's training requirements are permitted (but not required) to provide bystander intervention training. Additionally, effective April 2019, New York City will require employers to provide bystander intervention training.
Conclusion:
Several states and local jurisdictions will consider adding/expanding training requirements in 2019, so even if you aren't subject to a requirement now, you could be in the near future. And as mentioned above, providing sexual harassment training is a best practice even if you aren't required to do so.