By Mark F. Kluger and William H. Healey
And we’re about to lose control. With apologies to the Pointer Sisters for dragging their hit song into our sad little world, the fact is that we have been eagerly waiting to see what the law, which mandates annual sexual harassment training for all NY employers, really means. On August 23rd, we got a sneak peak in the form of a draft model training program. The Department of Labor will entertain comments on the draft until September 12. Keep them clean!
The big mystery, which has kept us up at night since the law’s April passage, is what the legislature meant by the requirement that the training be interactive. Here’s what’ve learned: the model program says that interactive means that there must be “some level of participation by those being trained” (staying awake does not count), but it also states that the training should include as many of the following elements as possible:
- Be web-based, with questions asked of employees as part of the program
- Accommodate questions asked by employees
- Include a live trainer made available during the session to answer questions
- Require feedback from employees about the training and materials presented
So unless something changes, it appears that the training must not only have a web-based Q&A component, but a live human being also has to show up at some point in the program to accommodate questions and to answer questions, which sound like the same thing to us. And that’s not too much of a burden on NY businesses, right?
Wait, there’s more. The instructions to employers include the following:
- All employees should complete sexual harassment training before January 1, 2019
- All employees must complete an additional training at least once per year
- All new employees should complete sexual harassment prevention training within 30 calendar days of their start date
You read that right folks. From Brooklyn to Buffalo, and everywhere in between, all employees must be trained by the end of the year and all new employees within 30 days of hire. So, what time would you like us to get there?
The substance of the model program is kind of like the Mojave in August. It includes 6 rather juicy scenarios though, in 5 of which Ralph, Paul, Harold, David and unnamed construction workers respectively (not respectfully) say or do sexually inappropriate things to Li Yan, Sharon, Carla, Keisha and Tatiana. Only one scenario involves a woman boss (that’s sexist) who does not even sexually harass anyone, but instead gender stereotypes Leonard because he wears earrings and necklaces to work.
Despite our tone, these training requirements are serious business and must be implemented quickly. Mercifully, employers do not have to follow the script, but are required to provide training that includes all the elements of the legal and practical issues raised in the model program.
We have been conducting live sexual harassment training since the mid-90’s (click here). We know that in-person training is the most effective way to deliver and ensure that the message has been heard and absorbed. The most responsible means of protecting your company from sexual harassment issues is establishing a foundation with your employees, from the outset, that’s built on practical guidance regarding how to behave in the workplace. Most importantly, to not train would be reckless and illegal–at least in New York. Yet another reminder that we’re living in a post-#MeToo world.