Illinois Sexual Harassment Training will now be Required: What does an Employer do?

Last week the Illinois General Assembly approved legislation that would require all employers in that state to conduct mandatory sexual harassment training. If signed into law by Illinois Governor Pritzker, this law would take effect on July 1, 2020 and would be the most comprehensive of its kind in the country. Given the substantial implications for employers (and the extremely high likelihood that it will be signed into law) it is imperative that employers prepare for and implement a harassment training program now, so that they can be ahead of the curve once the training is required soon after the July 1, 2020 effective date of the law.

Illinois is Likely Follow the New York Legislative Path

 

In April 2018 New York enacted legislation that is similar in scope to the law just passed by the Illinois General Assembly. The New York law had an effective date of October 9, 2019 and an original requirement that employers complete the training by January 1, 2019. That requirement was later modified to October 9, 2019. As you see with the Illinois law having an effective date of July 1, 2020, it can be expected that training will need to be complete sometime within the 2020 calendar year.

 

New York released a list of FAQ and modified its law several times leading up to the release of the model training program it issued in late August 2019. You can expect Illinois to do the same, and given the Illinois Department of Human Rights history, you can expect somewhat more clarification as to what needs to be contained in your training program given there is less conflict between municipalities and the state than there was in New York last year.

 

What we know for sure is Illinois will require employers to provide training on an annual basis, and the Illinois Department of Human Rights will be keeping a close watch on what type of training employers are providing. This means it is a good idea to get started on the process now, rather than waiting for the law to go into effect and scrambling to comply with the law on a retroactive basis. You will be providing your employees with training on an annual basis going forward, so why wait another year?

 

Provide Training in Summer 2019

 

The new Illinois law requires employers to annually train their employees on the prevention of sexual harassment in the workplace. It also requires employers to provide an explanation of what constitutes harassment under Illinois State law, provide examples of harassment, summarize state and federal laws (and remedies for) sexual harassment, and summarize the responsibilities of employers in recognizing, investigating, preventing and taking corrective measures to prevent harassment.

 

There is no need to wait for the Illinois Department of Human Rights to release the model training program to get a jump on providing your employees with sexual harassment training. While there will be greater clarification in the requirements of the training by the time the law goes into effect, providing training now, when the news is fresh, shows your employees that your organization is serious about not just compliance with the law, but also with eliminating a culture where harassment is tolerated by setting the training trend in your industry rather than merely following the law when it goes into effect. Syntrio is ready to train your employees on the prevention of sexual harassment in Illinois and we can help.

 

Syntrio’s Model is Effective

 

Even if you are not prepared to launch a full-scale Illinois training program in advance of the new law’s effective date, we can still work with you using our industry-leading learning continuum that has set the standard for effective harassment training nationwide. Syntrio has over 20 years experience working with states with mandatory training laws, and we believe in our model.

Whether you choose to provide your employees our Illinois sexual harassment training course now or at the time the law goes into effect you can be assured you are providing your workforce the most comprehensive and engaging training available on the market. Syntrio develops its sexual harassment courseware based on a “hub model” wherein approximately 70% of its content and scenarios are consistent across jurisdiction, yet a full third of the content is customized to the nuances of each state’s law, culture, fit and feel. Should you have employees in multiple jurisdictions they will all feel as though they have taken the same course, yet you can trust that you will be in full compliance with the law in each mandatory training state, which is not something that can be said by our competitors using a “one size fits all” model.

 

Syntrio encourages your organization to get a head start on training your Illinois workforce on the prevention of sexual harassment in the workplace. We are prepared to discuss a plan with your leaders that will not only comply with the new law but position your organization as a true champion of equal opportunity rights.

Illinois Sexual Harassment Training Soon to be Required by Law

With the passage of Senate Bill 75 and near guaranteed assurance that Governor Pritzker will sign the bill into law, Illinois has just outdone New York and California in creating the most comprehensive sexual harassment training requirement in the country.

 

Senate Bill 75 would require employers to provide annual sexual harassment training prevention to all employees working within the state. This sweeping change is based on the Illinois legislature finding that “tolerance of sexual harassment has a detrimental influence on workplaces by creating a hostile environment for employees, reducing productivity, and increasing legal liability.” The legislature sought to include its harassment training requirement in a sweeping package of legislation that included significant other changes to the law in that State.

 

By requiring training, the State of Illinois feels employers are less likely to engage in harassing practices and/or retaliatory employment actions. The legislature also feels a trained workforce is more likely to foster a culture wherein employees are comfortable reporting potential incidents and employers and managers will be more likely to create policies that counter the potential for incidents of workplace harassment.

 

Although we expect clarification and implementing regulations in the coming months, among the requirements of the new Illinois law include the following facets of a harassment program, which have become common to the variety of new laws passed in this area within the past year:

 

  • An explanation of sexual harassment consistent with Illinois State Law
  • Examples of conduct that constitutes unlawful sexual harassment
  • A summary of relevant federal and state statutory provisions concerning sexual harassment, including remedies available to victims
  • A summary of responsibilities of employers in the prevention, investigation and corrective measures of harassment

 

Training Every Year

 

As mentioned earlier, Illinois will require employers to train all of their employees at least once a year. While the state will be developing a model training program that will meet the minimum requirements of the law, employers are encouraged by the bill text to develop their own program or use that of a third party to fulfill the requirement.

 

Higher than Average Penalties

 

An interesting facet of the new Illinois law is the penalties provision, which shows Illinois is taking harassment prevention seriously. In addition to ordering non-compliant employers to train their employees within 30 days, Illinois has added a provision for financial penalties if employers choose to ignore such an order. Those penalties can range from $500 for a first offense for a very small employer to $5000 for a third offense for an employer with 4 or more employees. These penalties are certainly more than nominal, and should encourage employers of all sizes to get ahead of the curve in preparing their training programs.

 

Industry-Specific Training

 

Further, owners and managers of restaurants and bars in Illinois should be cognizant of the fact the new law enumerates specific provisions for those establishments as well. The state legislature found that restaurants and bars have a particularly high incidence of harassing behavior, and therefore are required to provide training that is specific to that industry and managers within. Syntrio will of course be developing a concurrent version of its Illinois training course that will fill the needs of restaurants and taverns.

Finally, while no date for training completion was included in the bill text, it is reasonable to expect that lawmakers expect training to be complete by January 1, 2020, as has been the pattern with other states implementing these laws. Should Illinois get the bill signed quickly by Governor Pritzker we can expect there will be implementing regulations by early this fall at the latest, as has been the pattern with New York and Delaware during calendar 2018. More to come as this law develops.

When It Comes to Harassment Training, One Size Does Not Fit All

As of April 15, 2019, twenty-seven states either have: a. a legislative requirement that some employees receive training on the prevention of unlawful harassment in the workplace or b. proclaimed an administrative or legislative recommendation that harassment training take place among some portion of the jurisdiction’s workforce.

New York, California, Connecticut, Maine, Delaware – and to an extent D.C. – (which require training for state or other public-sector employees) have gone beyond many of their peers by enacting sweeping legislation that is applicable to large portions, if not all, of workforces in these states.

These specific states enacted their training laws to suit the needs of each individual jurisdiction. The needs of employers operating across multiple states were not contemplated by any of the legislatures when these laws were developed.
Enforcement practices are ignorant of the fact that a great many employers operate in more than one state that has a mandatory training law. The increased training requirements have created substantial burdens on multi-state employers, leaving them scratching their heads as to the best approach for training some or all of their workforces so the businesses can comply with the legislative requirements and ensure that the remainder of the workforce is not left behind in this important education.
Now employers are recognizing that a “check-the-box” approach to of getting training “out of the way” is not only ineffective, but also potentially damaging to workplace culture. Further, it has become crystal clear among harassment training experts that a “one-size-fits-all” approach simply does not work.

Different States Have Different Requirements

Compliance with the various state mandatory training laws is admittedly burdensome and time consuming, but it is important to understand the key differences among the five (discounting D.C.) states that require a large portion of their workforces to receive training.

Varying Time Requirements

California and Connecticut managers are subject to a two-hour training requirement, whereas New York, Maine and Delaware have no specific time requirements. Further, California’s non-supervisory employees must receive at least one hour of training in order to comply with the law in that state.

While the employer who allocates time for comprehensive training may see value in providing two hours of training to all employees, many employers believe that employees taking two hours of the work day to attend harassment training is more than they can spare where such a time requirement is not imposed by law.

Syntrio recently concluded that one hour is a “sweet spot” minimum to effectively communicate the necessary instruction to build the foundation for an effective harassment prevention program. Therefore, if you have managers in multiple states, it would be necessary to provide multiple versions of the manager training to account for the increased volume of training required by California and Connecticut.

Different Content Requirements

A non-state-specific course must by nature focus on federal law, which is the floor for harassment protection. Employees in states with mandatory training laws must receive more detailed state-specific information.

Aside from the basic principle that each mandatory training law requires special training for managers, much of the content and language requirements set forth by the states with mandatory training laws differs:

  • Protected classes vary state to state (which are additions to federal law), thereby creating the need for unique descriptions and scenarios.
  • Definitions of harassment and its interpretation are significantly different in various states (many states are broadening the definition of harassment and its historical analyses).
  • Manager duties prescribed by specific states differ (and conflict) with one another.
  • California requires training on abusive conduct, a state-specific concept and definition.
  • California requires training on gender identity, gender expression, and sexual orientation, none of which are uniformly protected by the federal law, Title VII of the Civil Rights Act of 1964.
  • California recommends training on categories other than sexual harassment such as age, race, and religion, while New York training specifies a focus on sexual harassment.
  • New York, Delaware, Connecticut, and Maine require detailed instructions on how and where to report a claim of harassment to the administrative agency within that state.
  • New York has a state-specific claims reporting process that must be included in the course. It is more detailed and thorough than those in other states.
  • New York requires information on New York City laws, that differ from state and federal law significantly.
  • Connecticut and Maine require line-by-line language from the state anti-discrimination laws and verbatim description of reporting procedures inapplicable in other states.

As you can see, attempts to rationalize and distill all of the above training requirements (which are part of the significant differences) have been futile. For this reason, Syntrio takes the approach that “one-size-fits-all” courseware that generalizes the above requirements is non-compliant for employees who are subject to state-specific harassment training requirements and it diminishes an employer’s ability to train its staff to requirements mandated by these states.

Time Is Money: Examining the Length of Harassment Training Courses

Harassment training costs money, both in employee time and actual dollars spent. Because of the significant resources that must be expended to train a workforce on the prevention of workplace harassment employers are understandably looking for the most “bang for the buck” on their investment. While efficiency in training is absolutely critical, there comes a point where a core harassment course is simply too brief to educate a workforce on the important concepts that encompass the world of harassment prevention. So where is the “happy medium?”

Five states (and the District of Columbia) currently require at least some employees to be trained on the prevention of harassment in the workplace. Of those five states, only California and Connecticut have statutorily mandated minimum training requirements, both requiring a minimum of two hours of training for managers. California recently enacted a law requiring non-supervisory employees to also be trained, but the state requires just one hour of training for non-managers on the same topics as the two hours of training required for managers. The other four jurisdictions requiring training (New York, Delaware, Maine and D.C.) did not set a minimum within their law, but New York infers in its guidance (and verified in response to a question on the subject) that 60+ minutes is the minimum amount of time required to train employees on the topics it considers mandatory for training to be in compliance with the law.

The previous statement is curious given the “FAQ” answer the New York Department of Human Rights (“NYDHR”) gives in response to the question “is there a minimum number of training hours employees must complete each year?” New York State answered that question with a seemingly unambiguous (yet very qualified) “[n]o. As long as they receive training that meets or exceeds the minimum standards.” In order to determine what those minimum standards are, it is necessary to examine the NYDHR's model training script that was released when that state’s law went into effect. While the script outlines the necessary topics for minimum training, the interactivity requirement in the state’s law certainly adds significant time over just reading through the 23 page script.

A representative from New York State responded to a telephone inquiry on the subject in January 2019 that the minimum training program was written and intended for an approximately 60 to 90 minute delivery time. Therefore, while the state set no minimum time within its law, it not only requires training that meets the minimum standards set forth in the law, but the State itself was unable to develop a program that lasts less than 60 minutes (and more likely longer).

California and Connecticut surely did not develop their statutory one- (California non-supervisors) and two-hour minimum time requirements without conducting significant research into the amount of time it would take to effectively and comprehensively train employees on these important subjects. While the skeptical employer may argue that those requirements were first developed 20 (Connecticut) and 12 (California) years ago, New York followed up with creating a course that was designed to take between 60-90 minutes. Therefore, it is clear from state Human Rights Department conclusions that an hour is the minimum amount of time a core harassment prevention course should be designed to take, and it is possible that state fair employment agencies subscribe to a “more is better” approach.

What to Look For When Selecting Your Training Methods

The aforementioned information should be taken into account when considering the use of an exclusive micro-learning platform or other short-form harassment prevention approach to your organization’s needs. While your state may not have a training requirement, it is certainly important to fulfill this important need as part of the duty your organization has to maintain a culture free of harassment. Even if the well-being of your employees and corporate culture take a back seat to preventing and defending lawsuits (which is not a recommended approach, yet one that we have heard over the years as a reality for some employers) the more than $1 billion annual harassment verdict and settlement costs routinely estimated over the last several years should be enough to convince the most skeptical of training customer that this is a subject well worth investing the proper time and dollars into doing correctly.

While there is no way to quantify what amount of training “works,” in over 12 years of experience providing hundreds of in-person and online training programs to companies of all sizes it has become clear that one hour is the minimum amount of time needed to effectively illustrate the concepts contained in such a broad and complicated topic as the prevention of workplace harassment. While one hour may seem brief, an expert trainer skilled in keeping the audience’s attention can effectively teach these concepts and provide ample time for the interactivity and learner engagement that is so critical to making the educational concepts stick. Anything less is truly doing the workforce a disservice, and nothing more than an attempt to “check the box” without providing an actual learning opportunity.

The most effective approach to training (as reinforced by the states that have developed their own mandatory minimum training scripts and set time limits) is a long-form core training course followed up by a learning continuum consisting of short form training that emphasizes particular concepts and issues. Such an approach builds the foundation necessary for continued learning and is without a doubt the most effective means of improving corporate culture and empowering your employees to work together to prevent incidents of harassment from occurring going forward.

New York City Clarifies Sexual Harassment Training Requirements

Most employers with a connection to New York City are aware that the City (as well as New York State) enacted legislation requiring mandatory, annual sexual harassment training covering nearly all employers (and employees) in the City and State.

For the past several months employers have been left scrambling to draw inferences from the subtle vagaries within the City and State statutes and seeking guidance beyond the ambiguous answers set forth in the Frequently Asked Question “FAQ” sections provided by the New York City Human Rights Commission and New York State Department of Human Rights.

While many of the provisions of this complicated and time-consuming law remain ambiguous, on April 3, 2019, the City released some final guidance that will help guide you on your path to compliance with New York City’s law.  You can review the full FAQ section here.

We have highlighted important clarifications for your convenience:

Q: When must NYC training be complete?

A: Among the important clarifications is a requirement that training not only be provided each calendar year, but the initial training must be completed by New York City employees by December 31, 2019. This is in conflict with (and superseded by) the State requirement that training be completed by October 1, 2019, but nevertheless firmly establishes the City training requirement of 2019 being a mandatory training year.

Q: How quickly must my organization train a new hire?

A: ASAP. The NYC Human Rights Commission states: “Employers should train staff as quickly as possible after hire. Upon hire, employers are liable for sexual harassment by new employees” (emphasis added).

The bolded language puts employers on notice that the NYC Human Rights Commission will be looking for training (or lack thereof) when there are claims of harassment involving new hires and therefore employers are strongly urged to complete compliant training immediately. We recommend implementing the training package as part of new hire orientation, ideally within the first few days the employee is working for your organization.

Q: What if my employees have contact with New York City but do not work there?

A: The City’s final information sheet clearly states “if the employee is connected to New York City in any way, the employee must be trained.” The City goes on to provide the following examples of employees who work outside the City but would need to take training under its law:

  • Employees who work, or will work, in New York City
  • If an employee works a portion of his or her time in New York City (even one day), he or she must be trained
  • If an employee is based elsewhere but interacts with employees in New York City (even if not physically present in New York City), he or she must be trained

As such, anyone who has even the slightest amount of contact with New York City (arguably even a phone call with a client in that location) must take training that complies with New York City’s law. Importantly, if an employee takes a training module in his or her primary location that substantially complies with the New York City requirements, he or she does not need to be re-trained. Simply stated, New York City expects that all employees receive training on the prevention of sexual harassment in the workplace.

Q: I hired a new independent contractor who claims he or she was trained. Do I need to re-train the contractor?

A: No, provided the contractor can provide documentation that he or she took training within the last calendar year. If there is no evidence that training occurred within the last calendar year, the employee should be re-trained by the new organization to maintain compliance.

Q: I would like to have employees complete training off-duty. Must they be paid?

A: Yes. New York City has unambiguously stated that if an employer requires its employees to take the training outside regular work hours, the employees must be paid at their regular rate of pay. This means Plaintiff attorneys will be on the lookout for those organizations asking employees to view the training on their commute or at some other point outside regular working hours, which could lead to catastrophic damages in a wage and hour class action.

While the updated FAQ and guidance from New York City clean up some ambiguities in the law, the City’s law places a heavy burden on all employers. For this reason it is essential that your organization formulate a plan for training your New York City-connected employees prior to December 31, and ideally by October 1, 2019 to maintain compliance with the City and State laws.