All employers in New York and California are now required to provide sexual harassment prevention training to all employees, in both supervisory and non-supervisory positions. Employers in New York must complete the training by October 9, 2019, while employers in California have until January 1, 2020. The trainings will need to be state specific, as each state has its own content requirements. EP’s Central Casting division will train background actors in both New York and California for productions cast and paid by Central Casting. EP has written on this topic in prior alerts, and this alert focuses on the details regarding the training requirements.

New York State and New York City

New York State and New York City have separate requirements for employers to provide anti-harassment training to their employees. Employers in New York City will need to comply with both sets of law.

Who must be trained?

All employees in the state of New York must be trained, including part-time workers, seasonal workers, temporary workers, and minors such as child actors. New York City specifies that any employee who works for more than 80 hours and at least 90 days in a calendar year must be trained. But the State’s blanket requirement that all employees must be trained likely requires training even if an employee does not work for 80 hours and 90 days. Both the State and the City also recommend training non-employees such as independent contractors or freelancers who interact with the employer’s employees, because liability for their actions may also be imposed on the employer.

When must they be trained?

By October 9, 2019, all employees in the state of New York must complete interactive harassment prevention training. New York City’s training deadline is December 31, 2019. However, employers in New York City must comply with both sets of laws, so companies should be prepared to complete the training by the earlier deadline of October 9, 2019. After this initial October 9th deadline, employees must receive training once per calendar year. New employees should be trained as soon as possible, but the law does not mandate a definitive time period for new employees to be trained.

How must they be trained?

Trainings must be interactive. Generally that means there is an aspect of employee participation, such as quiz questions or an opportunity for employees to ask questions or provide feedback.

New York State has provided free training videos that are compliant with State training content requirements, but does not satisfy the “interactive” requirement. New York State also has provided free model training scripts and presentation slides that can be used for in-person interactive trainings.

New York City has provided a free interactive training module that satisfies both the State and City training requirements.

What must be covered in the training?

If you decide not to use the State or City’s model materials, the training must, at a minimum, cover certain topics. For the list of topics required by New York State, click here. For the list of topics required by New York City, see FAQ #11 here. Neither the State nor the City have prescribed a minimum length for the training.

Must employees be paid for training time?

Yes, employees must be paid for time spent on a mandatory training. EP can help process payroll for training times submitted by EP clients for their production employees.

What records must be kept?

Employers in New York City must keep a completion certificate or signed employee acknowledgment of the training for at least three years. Employers in New York State outside of New York City are not required to keep a record, but the State recommends doing so.

Are there tax incentive implications?

The Initial Application for the New York State film production tax credit includes an Employment Practices form which must be submitted to the State prior to being approved for the tax credit. The form asks whether the production entity (A) has a written code of conduct relating to sexual harassment, which is explained to all employees via in-person training at the start of each production, or (B) is willing to adopt such a code of conduct within 30 days. Joseph Chianese (jchianese@ep.com) of EP Financial Solutions can help answer your tax incentive questions.

California

Who must be trained?

Companies with at least five employees must provide anti-harassment training to all employees in California, including part-time, seasonal, and temporary workers. Anti-sexual harassment training was previously required only for supervisors in California, but the law has expanded to require training for non-supervisors as well. Unlike New York, California does not require training for non-employees such as independent contractors or freelancers.

When must they be trained?

By January 1, 2020, harassment training must be completed for applicable employees. Both supervisory and non-supervisory employees must be trained within 6 months of assuming their position. Beginning January 1, 2020, seasonal or temporary employees, or any employee that is hired to work for less than six months, must be trained within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first. After January 1, 2020, California employees must receive training once every two years. A bill has been proposed in the California legislature to push back the January 1, 2020 training deadline. EP will monitor the bill and provide material updates.

How must they be trained?

Employees in supervisory roles must receive at least two hours of training, while employees in non-supervisory roles must receive at least one hour of training per training cycle. Trainings may be completed by employees individually or as part of a group presentation, and may be completed in shorter segments, as long as the applicable hourly total requirement is met. Trainings must be “effective interactive training,” which is defined in detail in the California regulations to include in-person training by a qualified trainer, and e-learning or webinars with quiz questions and the opportunity to ask questions. The regulations also state that only certain attorneys, human resources professionals, harassment prevention consultants, and professors may serve as a harassment prevention trainer.

The California Department of Fair Employment and Housing (“DFEH”) is building compliant online training courses that it expects to be available by late 2019. Currently, the DFEH has made available a free training toolkit that can be used by a qualified trainer to conduct training.

What must be covered in the training?

If you decide not to use the DFEH’s materials, the training must, at a minimum, cover certain topics. For the list of topics required by California, click here. Note that California, unlike New York, requires the training to cover abusive conduct, and harassment based on gender identity, gender expression, and sexual orientation. California employers are also encouraged (but not required) by law to provide training on bystander interventions.

Must employees be paid for training time?

Yes, employees must be paid for time spent on a mandatory training. EP can help process payroll for training times submitted by EP clients for their production employees.

What records must be kept?

California employers must keep documentation of the training for at least two years.

Do minors need to be trained?

Beginning June 30, 2019, another new California law (AB 2338) requires minors age 14 to 17 years old to complete sexual harassment training with their parents or legal guardians before an entertainment work permit for the minor will be issued. The requirements detailed in the above sections do not apply to AB 2338 training.

EP Labor Relations and Legal Contacts:

Alan Wu
Director, Employment & Labor Relations Counsel
awu@ep.com
Phone: 818.955.6055

Scott Bishop
Vice President, Employment Law
sbishop@ep.com
Phone: 818.955.4336

Joseph Scudiero
Sr. Vice President and Chief Labor Counsel
jscudiero@ep.com
Phone: 818.955.4335