Following the COVID-19 pandemic, the number of employers with remote employees has significantly increased. Employers are reminded to monitor employment laws and ensure compliance in all jurisdictions in which they have employees performing work. Numerous employment laws—such as non-discrimination, anti-harassment, wage and hour, and leaves of absence—may cover employees performing work in remote locations, regardless of whether the employer has a physical presence there. This summary focuses solely on sexual harassment and bystander intervention training requirements in select jurisdictions.[1]
As we have previously reported, there are several jurisdictions that require employers to provide sexual harassment and/or bystander intervention training to their employees (and in some cases, independent contractors) that meets certain minimum requirements. To evaluate whether state and local training requirements apply, employers should engage in a two-prong analysis and determine whether (i) they are a “covered employer” under a state or local law and, if yes, (ii) whether the remote employee is a “covered employee” under those laws.
California
Under California Government Code section 12950.1, employers with five or more employees (anywhere in the country) must provide at least one hour of interactive sexual harassment and abusive conduct prevention training to their California nonsupervisory employees, and at least two hours of such training to their California supervisory employees, within six months of hire (or assumption of a supervisory position) and every two years thereafter. For purposes of determining employer coverage under the law, both employees who work inside and outside of California are counted toward the five-employee threshold (as are independent contractors, volunteers and unpaid interns). State guidance clarifies that only employees working in California must be trained; employees located “outside of California” are not required to be trained under the state law. Similarly, employers are not required to train independent contractors, volunteers and unpaid interns (though state guidance suggests this is best practice).
Connecticut
Under Connecticut’s Time’s Up Act, employers with three or more employees (at any worksite, within or outside the state) must provide two hours of interactive sexual harassment prevention training to new employees in Connecticut within six months of their start date. Employers with fewer than three employees across all worksites must provide two hours of interactive training to newly hired supervisors in Connecticut within six months of their start date. FAQs published by the Connecticut Commission on Human Rights and Opportunities (“CHRO”) provide the following example:
- “If a Minnesota-based company has ten employees in Minnesota and one in Connecticut, that one employee in Connecticut would be subject to the training requirements.”
All covered employers must provide supplemental training at least once every ten years.
Delaware
Delaware law requires employers with 50 or more employees in Delaware to provide interactive sexual harassment prevention training to be conducted within one year of an employee’s start date, and every two years thereafter. Supervisory employees in Delaware must receive additional interactive training within one year of hire (or promotion to a supervisory position), and thereafter every two years, addressing supervisors’ specific responsibilities regarding the prevention and correction of sexual harassment and the legal prohibition against retaliation. Currently, there is no guidance from the state addressing training requirements for remote workers based outside of Delaware.
Illinois
Under the Illinois Human Rights Act (“IHRA”), every Illinois employer, regardless of size, must provide annual sexual harassment prevention training to all employees working in Illinois, with supplemental training requirements applicable to restaurants and bars. The Illinois Department of Human Rights has published FAQs, which provide that employees who “work or will work” in Illinois must be trained, regardless of whether they are based in Illinois. Further, employees that are based outside of Illinois but regularly interact with other employees in Illinois should also be trained. The guidance provides two examples:
- “Supervisor A works for ABC company in another state (e.g., Indiana, California, Florida, etc.) and supervises employees of ABC who work in the State of Illinois. Supervisor A should receive sexual harassment prevention training compliant with the IHRA even though Supervisor A is employed in another state.”
- “Employee B works for ABC company in another state (e.g., Indiana, California, Florida, etc.) and will be working on a temporary basis with employees of ABC in Illinois. Employee B should receive sexual harassment prevention training compliant with the IHRA even though Employee B’s home employer is in another state.”
Chicago
Pursuant to the City of Chicago Human Rights Ordinance, which was amended in July 2022, employers with any employees working in Chicago must provide one hour of sexual harassment prevention training for employees (two hours for supervisors and managers) and one hour of bystander training for all employees. The trainings must be conducted on an annual basis. City guidance provides that the training requirement “applies for all employees who work in Chicago, even if remote, and their managers or supervisors, even if the managers or supervisors work outside of Chicago.”
Maine
Maine law requires employers with 15 or more employees located or doing business in Maine to conduct a sexual harassment prevention training program for all new employees in Maine within one year of commencement of employment. Covered employers must conduct additional training for managerial and supervisory employees within one year of commencement of employment, which must cover those employees’ specific obligations with respect to reporting and addressing sexual harassment complaints. Currently, there is no guidance from the state concerning training requirements for remote workers based outside of Maine.
New York
As we previously reported here, all New York employers regardless of size must provide interactive sexual harassment prevention training to all employees on an annual basis. According to FAQs published on the state’s website, employees who “work or will work” in the state of New York need to be trained. Further, if an individual works “a portion of their time in New York State,” they must also receive training – even if they are based out of another state.
New York City
The Stop Sexual Harassment Act in NYC requires employers with 15 or more employees (anywhere in the country), or one or more domestic workers, at any time during the current or prior calendar year to provide annual interactive sexual harassment prevention training to all employees (including part-time employees, short-term employees, interns and/or independent contractors who work more than 80 hours in a year and for at least 90 days). For purposes of determining employer coverage under the law, independent contractors – regardless of the number of days or hours they work – are counted toward the 15-employee threshold. The NYC Commission on Human Rights FAQs specifically state that “[a]ny employees who work or will work in New York City for more than 80 hours in a calendar year and for at least 90 days must be trained, regardless of whether the employer is based in New York City.” The FAQs also state that if an employee is based outside of New York City, but “regularly interacts with other employees in New York City, they should be trained, even if they are not physically present in the City.
Jurisdictions in Which Training Is Only Recommended
Some jurisdictions do not expressly require sexual harassment prevention training; however, they encourage it. For example, in June 2023 Colorado enacted the Protecting Opportunities and Workers’ Rights Act (“POWR”) Act, which, among other things, encourages employers to establish a program to prevent harassment and promptly investigate and address complaints of discrimination and harassment. Massachusetts similarly encourages sexual harassment prevention training, and the Massachusetts Commission Against Discrimination notes that an employer’s commitment to providing training may be a factor in determining liability or the appropriate remedy in claims alleging sexual harassment.
Takeaways
With these jurisdictional requirements in mind, employers should review their current employee counts in each work location and determine what, if any, training requirements apply to them. Employers should also be aware that some laws addressing training may also include a requirement to maintain a written anti-harassment policy that meets or exceeds certain minimum standards.