Preston Clark, J.D. | Apr. 11, 2019

20 Answers to Common Anti-harassment Training Questions

On April 2, 2019, we held a webinar to discuss the latest anti-harassment training mandates. We received over 100 anti-harassment related training questions from HR and compliance professionals during the webinar, and we distilled those questions into a top 20 list. The answers to those 20 questions are below for your review.

If you have any questions, or would like to schedule a 1:1 meeting with the Impactly® team to discuss your anti-harassment training strategy, please follow this link to schedule>>

20 Answers

Question: If an employee in California provides their certificate from the previous company of completion of training do they need to retake training?

Answer: Although California and New York have record keeping requirements for training completion certification, as a best practice, new hires should be trained or re-trained upon joining a new company.  This recommendation is based off of the inconsistency in trainings (whether or not the training at the previous company met all of the compliance mandates) and the ability to get the previous company to provide their certification of completion to another company for a former employee.  Ultimately, the liability will attach to the current employer, therefore, we recommend re-training a new employee even if they had been trained at a former employer.

Question: If our headquarters is located in a different state, and we have less than 5 employees in California do we still have to follow these rules?

Answer: Yes. If your total employee count is five or more, then the employees in California will be subject to the mandates and will need to train.

Question: We only have 1 to 5 field sales employees in the mandated states. Are we required to do this training?

Answer: Yes.

Question: In 2019, do I need to retrain California employees who were trained in 2018?

Answer: Yes. According to recent (January, 2019) guidance from the California Department of Fair Employment and Housing, 2019 is a mandatory training year under SB1343, irrespective of who you may have trained in 2018.

Question: If a New York employee had recent training before coming on board, does that count for our company, if employee provides proof of training?

Answer: It is your responsibility to ensure that all employees are trained to your company standards and familiar with your company practices. If both you and the individual’s former employer use the same unmodified state model training or one of similar substance (for example, shared training provided by a labor union or employer group), you may consider the employee trained. However, even if the same training is used, may still wish to train all new employees to your standards.

Question: How is “interactive” training defined in New York?

Answer: New York State law requires all sexual harassment training to be interactive. It requires some form of employee participation, meaning the training may:

  • 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; and/or
  • Require feedback from employees about the training and the materials presented.

Question: When determining whether mandate thresholds (e.g., number of employees) have been met, should one look to the direct subsidiary or to the parent company who is employing? Must we look at the actual contract entity (entity with which employee has contract) or the entity which has that employee on its payroll?

Answer: The general rule is to look to what entity is the employing entity for purposes of, for example, payroll in order to determine whether or not the threshold is met.

For example, the California Code defines “employer” to mean any person regularly employing five or more persons or regularly receiving the services of five or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.

Question: What’s the training requirement for re-hires?

Answer: Although not specifically addressed in any of the state laws, if the employee is rehired within the window of continuous compliance, then the company, provided it has a record of the prior training (CA and NY require companies to maintain records regarding training attendance), may consider the re-hire to have been trained and does not need to re-train upon re-hire.  

Question: So if our headquarters are in California and we have salespeople in NY, Texas, Florida, should we just follow CA guidelines?

Answer: Yes, but for the employees in New York, you must also meet the state specific requirements there.  For example, New York requires an explanation of sexual harassment consistent with the guidance issued by the state, among other specific requirements.

Question: Is “annually” calendar year or employee anniversary?

Answer: In New York, employers must provide the sexual harassment prevention training to all employees on an annual basis, and must complete the initial annual training by October 9, 2019. In subsequent years, this may be based on the calendar year, anniversary of each employee’s start date, or any other date the employer chooses.

Maine requires training to be conducted within one year of commencement of employment.  Thereafter, the employer may train on an annual basis, on the date of its choosing, provided no employee is outside of the annual compliance window.

In California, training may be tracked by anniversary date or annually, provided all employees are brought into compliance with that annual date (this may result in some employees receiving the training more often than required).

Question: Are we responsible for training per diem employees and/or independent consultants who are in our offices on a semi-regular basis?

Answer: The California law includes independent contractors (defined as those providing work under a contract for each working day in 20 consecutive weeks in the current calendar year or preceding calendar year) and per diem, or temporary, workers as “employees” for coverage under the law. Beginning January 1, 2020, for seasonal and temporary employees, or any employee that is hired to work for less than 6 months, an employer must provide training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first.

The Delaware law on harassment training excludes independent contractors, and those employees who are employed less than 6 months continuously, from the training requirement.

Question: What if you are a medium size company, but you have one remote employee in a different state?

Answer: The training requirements apply to the location of the employee; the location of the company is not relevant for purposes of determining who needs to be trained. While best practice would be to train all employees on harassment prevention, if your intent is to only train the single employee in the mandated state, you might consider online solutions that can be purchased on an ecommerce basis. Email support@getimpactly.comfor recommendations.

Question: What if you have a remote manager in a different state, but their direct reports are in CA? Should the manager have CA manager training?

Answer: Although training managers outside of California is not required by the California law, it is a best practice to train all managers on harassment training.  This is particularly true in a scenario such as this, where direct reports are receiving harassment training. The company will want its managers to be in a position to answer any questions, issue spot and understand their role in ensuring a harassment-free workplace.

Question: If an employee has taken the 1 hour of training and then becomes a supervisor/manager, will they need to complete the manager training within 6 months of that job change?

Answer: Yes.

Question: Do these rules apply if the company location is in the specific state, or if the employee is residing in the specific state?

Answer: The training requirements apply to the location of the employee; the location of the company is not relevant for purposes of determining who needs to be trained.  Those companies with employees in New York City and New York State will need to be mindful of the nuances between the two as it relates to training requirements to ensure compliance.

Question: If someone is promoted to a supervisor role and they recently completed the non-supervisor training, would the recommendation be to have them complete another full 2-hour supervisor training or just a one-hour catch-up training?

Answer: Technically, a one-hour “catch-up” training that meets all of the requisite supervisor requirements would be sufficient if the supervisor has already received the one-hour non-supervisory training.  But, you’ll want to confirm that the “catch-up” training meets all of the state’s requirements as many vendors’ supervisory trainings span two hours, with the requisite supervisory content distributed across the entire two hour course.  

Question: Can I please receive the link for the NYC interactive training?

Answer: https://www1.nyc.gov/site/cchr/law/sexual-harassment-training.page

Question: Does the free NYC course meet the “interactivity” requirement?

Answer: Yes.

If you have any additional questions, or would like to schedule a 1:1 meeting to discuss your anti-harassment training strategy with a compliance training expert, please follow this link to schedule>>

 

Additional and relevant resources

Anti-harassment vendor comparison guide>>

California anti-harassment training requirements>>

New York anti-harassment training requirements>>

How to Implement an Affective Anti-harassment Training Plan>>


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