Yesterday, I spent a large part of my day talking about harassment training. Between completing a pitch for new work and scheduling training for existing clients, the questions I faced most were the following:
- Where is training required?
- How often should an employer do training?
- Where training is required, does the training have to be “live”?
With regard to the first question, even in this #metoo era where law makers have struggled to be proactive, the vast majority of states/cities do not have laws requiring harassment training. In fact, only a handful of jurisdictions require that employees be trained on harassment and discrimination. Earlier this year, New York State joined California, Connecticut and Maine and will require that employers provide training. Details about those requirements can be found in our previous blog post here.
Not to be outdone, a few weeks later, the NYC City Council passed a law requiring annual harassment training. On May 9, Mayor de Blasio, signed the bill into law. The bill requires employers with 15 or more employees to provide annual harassment training beginning on April 1, 2019.
At least, in NYC, the second question has been affirmatively answered. It is not yet clear if the New York state law will require annual training or some other frequency. California requires supervisor training every two years. Maine requires training of all employees, but only requires it within the first year of hire and not on an annual basis. Likewise, Connecticut requires two hours of supervisory training within six months of an employee obtaining a supervisory position.
That being said, even in jurisdictions where training is not required or is not requires on an annual basis, training should be regularly refreshed. This helps insure that new hires receive the training but also that employees do not get too relaxed with their co-workers and slip into inappropriate conversations.
I have seen increasingly in litigation that Plaintiffs’ attorneys are attacking the lack of or infrequency of training to argue that the employer condoned harassment and did not have an effective complaint procedure.
The NYC and New York State laws also answer the question of whether training must be live (there is no requirement for live training in California, Connecticut or Maine). Although training does not have to be live, it does have to be interactive or “participatory.”
The question is what is participatory? Although the law specifically notes that a live facilitator is not necessary, and the Commission will develop a model training policy, it would seem that at the least an employee should have the opportunity to answer/ask questions.
In my experience, the more interactive training sessions are those that provide real life scenarios for employees to discuss and for managers to discuss how to handle. I think that is difficult to do in an online setting. I’m not saying that there is not a place for online training, I just think that employers should think about augmenting it with live or video conference sessions.
I liken it to the last time you got computer training on a new program. If you are like me, you can read the instructions from your IT department and seemingly understand it in the training session you are provided, but until you are actually using the computer program on a daily basis, it is difficult to say that you truly understand the program.
As I mentioned above, the Commission will be developing a model online training policy that will set the floor for what NYC employers will be required to cover in the training. We will keep you posted when that is issued.