New York Harassment Training Must Be Interactive

State will release model training that employers can adopt

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New York employers will have to provide an interactive forum to satisfy the new law requiring yearly training to prevent sexual harassment. The law takes effect on Oct. 9, and businesses should start preparing now.

Effective workplace training programs benefit employers by ensuring employees know that the policies and procedures exist and that they are familiar with how to use them, said Regina Faul, an attorney with Phillips Nizer in New York City.

The training will need to provide:

  • An explanation of sexual harassment and specific examples of inappropriate conduct.
  • Detailed information concerning federal, state and local laws and the remedies available to victims of harassment. 
  • An explanation of employees' external rights of redress and the available administrative and judicial forums for bringing complaints.

The training must be interactive—but the precise definition of "interactive" won't be clear until the state releases its model training. Employers can then choose whether to adopt the model training prepared by the state or develop their own, as long as their policies and training meet or exceed the standards contained in the model, said Melissa Osipoff, an attorney with Fisher Phillips in New York City.

Training Options

New York employers will likely be able to choose between in-person and computer-based training, as long as it is interactive. "Unofficially, the general consensus right now is that it does not have to be in-person training, but there will be formal guidelines published to the Division of Human Rights' website in the next couple of weeks, and it is highly likely that this will be addressed," said Katherin Nukk-Freeman, co-founder of SHIFT HR Compliance Training in Chatham, N.J.

Many organizations, including the state itself, currently provide trainings that are online or web-based, and so, it is anticipated that computer-based programs will still be permitted, she added.

Osipoff noted that in-person trainings can be valuable, because the content can be customized based on the workforce and the company's policies, practices and culture. But there are also a lot of effective computer-based trainings available that are interactive and go beyond simply requiring workers to passively watch a video, she said. Online programs often include quizzes and final reviews, scenarios and small-group discussion questions.

While the model training and guidance is pending, New York employers can look to California law for help determining what "interactive" means. Since 2005, businesses in California with 50 or more workers have had to provide at least two hours of classroom training "or other effective interactive training and education" regarding sexual harassment to all existing supervisory staff every two years and to all new supervisors within six months of their hire or promotion date.

[SHRM members-only toolkit: Complying with California Sexual Harassment Training Requirements]

The California Fair Employment and Housing Council has passed detailed regulations defining and clarifying what "interactivity" and other terms mean for employers in the state, said Patti Perez, vice president of workplace strategy at Emtrain, a California culture tech company. She was a principal author of the California training regulations that went into effect in 2016.

California regulations provide that "interactivity" requires that workers be able to ask questions of the training provider and receive answers within two business days.

Among other forms of training, California law permits "e-learning" sessions, which the regulations define as "individualized, interactive, computer-based training created by a trainer and an instructional designer."

Subject matter experts and instructional design experts are important for the interactivity requirement, because the question-and-answer portion must include replies or guidance provided by these experts, Perez noted.

"The training should include one or more ways to test whether the learners understand the material being taught," she added. This could be done through questions, skill-building activities and the use of hypothetical scenarios with discussion questions. "All of these should be used with the purpose of keeping the learners engaged," she said.

New York City

In addition to the statewide law, employers in New York City with 15 or more employees will have to comply with new citywide harassment-prevention training requirements—including that such training discuss the importance of bystander intervention to stop harassment. Although Mayor Bill de Blasio has yet to sign the bill, he is expected to do so soon, and it would take effect on April 1, 2019.

The New York City bill is clearer about what constitutes "interactive training." The text defines this as "participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory demonstrations as determined by the commission." The city's law specifically states that training is not required to be live or facilitated by an in-person instructor.

Although the bill provides a general definition of "interactivity," it doesn't specify what activities will satisfy this requirement, especially when the training is conducted through online or e-learning mechanisms, Perez noted. "While New York City might develop its own guidance on these issues, following California's clarifying regulations is probably the safest alternative for now."

 

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