As noted in DWT’s May and August advisories, the Act requires employers with fifteen or more employees to conduct annual sexual harassment training, effective as of April 1, 2019. According to the FAQs, an employer must include independent contractors (regardless of the number of days or hours those independent contractors worked) in its calculation of the number of employees for this requirement. For this purpose, an independent contractor is “a person employed as an independent contractor … to carry out work in furtherance of the employer’s business enterprise.” While the precise contours of this definition remain to be seen, it is clear that the intent behind this legislation is to encompass within its scope those individuals engaged as “gig” workers and freelancers.
The FAQs also provide a more detailed identification of the employees who must receive harassment prevention training under the Act. According to the FAQs, “[e]mployers are required to train employees who work more than 80 hours in a calendar year and work for at least 90 days. If an employee has worked less than 90 days or less than 80 hours in a calendar year, they do not need to be trained.” Individuals engaged as independent contractors must also receive this training, unless they have received it by some other means within the preceding year.
Like its State counterpart, the New York State Division of Human Rights (the “Division”), the Commission is developing an online training program that employers may use to comply with the requirements of the new law. In what is likely to be a relief for employers facing the need to comply with both the Act as well as its state-law counterpart, the Commission disclosed in the FAQs that it is partnering with the Division and the New York State Department of Labor to create a training module that satisfies the requirements of both the State and City law. The Commission anticipates making that training module available by the April 1, 2019 effective date of the Act’s training requirements.
The FAQs also provide details about the fact sheet that employers must distribute to new employees at the time of hire, which was discussed in greater length in our prior advisory. The FAQs state that the fact sheet can be distributed “on or about the employee’s first few days of work, but no later than the end of the employee’s first week of work.”
Finally, the FAQs reinforce that every employer in New York City must post the City’s notice of employee rights in the workplace in both English and Spanish, regardless of the demographics of the employer’s workforce. Following the lead set at the state level (details of which are available here), the City has also promulgated translations in nine additional languages, which should be used to the extent applicable to the employer’s workforce.
DWT will provide updates as the City releases additional information.