A lot has changed since the #MeToo movement erupted in 2017, but the problem of sexual harassment in the workplace has not gone away.
Over the past three years we also have seen a raft of new state and local laws enacted to fight sexual harassment, making it easier for victims to seek redress and requiring employers to take steps to prevent it from happening, including requiring workplace policies and training.
A half dozen states currently have laws requiring training: California, New York, Illinois, Connecticut, Delaware and Maine. The first three are among the top five most populous states.
Companies with national operations have employees who come under those states’ their employment laws (something particularly painful in other respects if you operate in California – but that’s a story for another day).
Last August, California enacted a law delaying for one year the effective date of employer harassment training requirements created by law in 2018 – from Jan. 1, 2020 to Jan. 1, 2021.
Under the new statute, employers with five or more employees, including temporary or seasonal employees, must provide at least two hours of training to all supervisors and at least one hour for nonsupervisory employees in the first year and then once every two years.
The effective date needed to be delayed because of widespread confusion over the poorly-worded original legislation – something that seems to be happening more frequently as California’s Democrat super majority continues to spew forth employment laws by the hundreds.
The law calls for employers to include practical guidance on federal and state laws concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment. It must be presented by trainers with knowledge and expertise
in the prevention of harassment, discrimination and retaliation. The training also must cover harassment based on gender identity, gender expression and sexual orientation.
Starting last October, New York mandates training for all employees who work any portion of time in the state, regardless of immigration status and whether they are exempt; non-exempt, part-time, seasonal, temporary or interns, as long as they work more than 80 hours in a year.
The law also covers independent contractors who work for an employer for more than 80 hours a year and haven’t received training elsewhere.
Employers must use a model harassment prevention training program provided by the state or establish a program that meets at least the minimum standards of the law. A live trainer is recommended, but keep in mind that New York currently doesn’t certify or license training providers.
In Illinois, as of Jan. 1 employers with 15 or more employees must provide annual harassment prevention training for all employees, regardless of their employment classification.
The Illinois Department of Human Rights offers a free model training program, but employers may use their own as long as it meets state standards. Illinois has no requirements for training format, trainers or retention of records.
The three other states’ training requirements are similar, if not as detailed. One thing they have in common is that they include smaller employers, including employers with 50 or more employees in Delaware, and as few as 15 employees in Maine and three in Connecticut.
What is clear for employers, whether or not you are directly impacted by these particular state laws, is the need to develop sexual harassment training programs that are adequate for stemming this kind of behavior and that are capable of helping to protect you from future liability.
