Preston Clark, J.D.

20 Answers to Common Anti-Harassment Training Questions

We’ve collected a representative sample of the most commonly asked questions regarding Anti-Harassment training and we distilled those questions into a top 20 list. The answers to those 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 other states 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 on 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.  This is true in every state with a mandate except for Delaware.  Delaware’s law requires the employer to have 50 employees in the state of Delaware in order to be subject to the training mandate.

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

Answer: Yes.

Question: If a New York employee had recent training before coming on board, does that count for our company, if an 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. Although you may accept the participation in training, there is risk in doing so. 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 at 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 rehire to have been trained and does not need to retrain upon rehire.  

Question: 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 and therefore, your New York employees should receive state-specific training.

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

Answer: Employers must provide the sexual harassment prevention training to employees in accordance with the state’s specifically required cadence.  Most states have a specific interval for all employees and one for new hires and newly promoted employees.  Employers must ensure they are meeting both requirements, meaning the initial training may be on a revolving basis, but thereafter, the employer may train the employee on a calendar year, annual basis. 

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

Answer:  It varies by state.  

A few examples: 

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. 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.

In Illinois, employers are not required to train independent contractors, but are strongly encouraged to do so.

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 [email protected] for 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?

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: Do any states require bystander intervention training?

Answer: Only New York City.

Question: If an employer has employees outside of the state of Illinois who regularly interact with employees in Illinois, do they also need to be trained on the Illinois law?

Answer: Yes.  If an employee regularly interacts with another employee in Illinois, they need to receive the Illinois specific training, even if they are already receiving anti-harassment training via another state’s mandate.

Question: Do any states require specific qualifications in order for a trainer to facilitate a compliant training?

Answer: Yes, California has specific “trainer qualifications” which must be met for any compliant training conducted.

Question: Must the trainings be a specific length?

Answer: In California and Connecticut, there are specific lengths for the trainings that must be met.  However, in the other states with mandates, there is specific content which must be covered, so the trainings must be enough time for all required content to be covered.

Question:  Do any states have a requirement for which languages the training must be offered?

Answer:  Employers should provide employees with training in the language spoken by their employees.  In Illinois and New York, it is required.

Question: Do any states require employers to have a harassment prevention policy?

Answer: Yes.  California, Connecticut, D.C., Maine, Massachusetts, New York, Oregon, Rhode Island, Vermont, Washington.

 

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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