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New York City’s Training Requirements Likely Expanded as it Extends NYCHRL Protections to Non-Employees

New York recently extended its protections of the New York City Human Rights Law to non-employees, including contractors and freelancers, following in the footsteps of New York State, which recently amended its Human Rights Law in a similar manner.  The new law will go into effect in January 2020.  We wanted to highlight an important development that arises out of the change in this law. 

Employers Must Now Train Contractors

The NYC Commission on Human Rights earlier this year asserted that the NYC law mandating sexual harassment training required employers to train non-employee contractors. It later softened that position because the law did not expressly mandate such training, opting instead to strongly encourage employers to train on-site contractors. This reversal tracked with the New York State Department of Labor’s position that the New York State Human Rights Law did not require employers to train independent contractors.  Given the City Commission’s most recent amendment to the city law, however, we expect the Commission to revisit this position regarding mandatory training of contractors, regardless of the NYSDOL’s position on this issue. 

In particular, we expect that the Commission will require New York City employers to train contractors where they perform services for more than 80 hours in a calendar year and for at least 90 days.  This would track with its current guidance strongly encouraging NYC employers to train contractors who provide this level of servicing.  It also tracks with its other guidance requiring training for temporary and part time employees, interns and for certain out-of-state employees who meet the 80 hour/90 day servicing level threshold. 

Employers must also take note regarding how the Commission currently interprets the training provision’s 15-employee coverage threshold.  It currently takes the position that employers must count (i) any contractor, regardless of the number of days and hours its services the employer; and (ii) all employees, even those based outside of New York City, which as a result, will extent the training requirements to a greater number of small employers and employers with a small operation in NYC. 

This is a significant development as it will require New York City employers covered by NYC’s sexual harassment training law to extend out their training programs starting in 2020.  It will also impact staffing firms and other employers who lease employees or provide consultants to an employer-client.  We will be watching closely to see the official position the Commission takes on this issue, which we expect will be forthcoming later this fall.  Employers, however, should start thinking right now how to modify their existing training programs to meet these expanding requirements. 

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About this Author

Michael S. Arnold, Mintz Levin Law Firm, Labor Law Attorney
Member / Chair, Employment, Labor & Benefits Practice

Michael Arnold is Chair of the firm's Employment, Labor & Benefits Practice.  He is an employment lawyer who deftly handles a wide array of matters. His capabilities include counseling on everyday HR life cycle issues, defending management and senior executives in connection with employment-related proceedings, and assisting companies navigate the complex employment issues that arise in transactions.  Michael’s clients appreciate his strong emphasis on providing not just legal advice, but also practical advice, that aligns with organizational and HR strategies while...

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Brie Kluytenaar, Mintz Levin, New York, Employment Relations Lawyer, Arbitration Attorney
Practice Group Associate

Brie represents a wide range of companies and has consistently achieved successful results for clients in fields including financial services, health care, technology, hospitality, media and cultural organizations. She has extensive experience resolving the many issues employers face throughout the employment life cycle, including counseling employers on hiring, terminations, reductions in force, internal investigations, wage and hour issues, disability and accommodations, statutory leave, and compliance with the rapidly-changing employment regulatory landscape.

Brie also has significant experience handling employment litigation in state and federal court, before federal, state, and local government agencies, and in mediation and arbitration. Brie has achieved positive results for clients in cases alleging various employment-related claims, including breach of contract, unfair competition, discrimination, retaliation, breach of fiduciary duty, fraud, misappropriation of trade secrets, and the like. Brie’s litigation experience also includes complex commercial litigation involving employment components.

Brie has been on the forefront of New York’s anti-sexual harassment legislation and works closely with companies to build internal culture through interactive workshops, training, policy revision, and other initiatives. Brie also has an active pro bono practice and regularly represents a large provider of legal services to low-income New Yorkers and an organization for survivors of gender-based violence.

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