Seyfarth Synopsis: The New York City Commission on Human Rights (the “City Commission”) has amended its guidance concerning the annual anti-sexual harassment training requirement under the Stop Sexual Harassment in NYC Act. Previously, the Frequently Asked Questions (“FAQs”) stated that companies did not have to provide independent contractors with the sexual harassment training required for employees. Recently, however, the City Commission revised this guidance, requiring that companies either train independent contractors, or ensure independent contractors have otherwise completed the required training. Companies can do this by either providing the training or demanding proof of compliant training.
The “Stop Sexual Harassment in NYC Act” (the “Act”), which was passed on May 9, 2018, requires, among other things, that employers with 15 or more employees in the previous calendar year conduct annual, interactive anti-sexual harassment training for all employees employed in New York City.
The City Commission provides guidance for compliance with the Act on its website under the FAQs. When originally published, the FAQs required companies to train independent contractors. However, this guidance was later reversed to state that while it was strongly advised that companies train independent contractors working on-site and working more than 80 hours in a calendar year and 90 days, such training was not required.
However, the City Commission has now amended the FAQs again, presumably in response to the expansion of the NYC Human Rights Law to protect independent contractors, which became effective January 11, 2020 (see our prior alert here). The FAQs now provide that companies must ensure that certain of their independent contractors receive anti-sexual harassment training. For instance, the FAQ provides:
Are employers required to have their independent contractors complete annual sexual harassment prevention training?
Yes. Similar to employees and interns, if an independent contractor works for an employer of 15 or more people and works (a) more than 80 hours in a calendar year AND (b) for at least 90 days (does not need to be consecutive), then the independent contractor must be trained. If an independent contractor worked less than 90 days, or less than 80 hours in a calendar year, they do not need to be trained.
Individuals who must be trained do not need to take the training at each workplace where they work over the course of a year. Independent contractors and freelancers may provide proof of completion of one sexual harassment prevention training to multiple workplaces and need not repeat the training at multiple workplaces.
As such, the FAQs make clear that hiring entities are not required to provide independent contractors with the entity’s specific training. Rather, companies may require independent contractors and freelancers to provide proof of completion of a compliant sexual harassment prevention training prior to providing any services under an independent contractor engagement.
We expect many companies and independent contractors will contemplate utilizing the Commission’s interactive training module that is free to the public and complies with the substantive training requirements under both New York State and New York City law. Because of complicated issues that arise, however, with respect to independent contractors, there are numerous factors to considers in determining appropriate training. Companies should seek legal guidance before making a decision.
Companies relying on work performed independent contractors and freelancers should think about how best to implement the new training requirement.
 Companies should be aware that independent contractors - regardless of the number of days or hours they work - count as employees for the purposes of calculating the 15-employee minimum. The employees or independent contractors need not be located in New York City to count toward the 15-employee minimum.