New York City Employers Must Provide Sexual Harassment Training to Independent Contractors and Freelancers Under a Recent Expansion of the New York City Human Rights Law

New York City employers must now ensure that their independent contractors and freelancers are trained regarding the prevention of sexual harassment in the workplace, in light of a recent expansion of the New York City Human Rights Law (“NYCHRL”).

Background

Pursuant to Int. 136-A, which took effect on January 11, 2020, independent contractors and freelancers are protected under the NYCHRL against workplace harassment, discrimination, and retaliation.  This means that independent contractors and freelancers, among other things: (a) must be trained regarding the prevention of sexual harassment in the workplace; and (b) have a right to receive reasonable accommodations under the NYCHRL, such as for needs related to disabilities, pregnancy, lactation, religious observances, and status as victims of domestic violence, sexual offenses, or stalking.  Further, independent contractors and freelancers can enforce their rights under the NYCHRL by filing claims with the New York City Commission on Human Rights (the “Commission”) or in court.

Training of Independent Contractors and Freelancers Regarding the Prevention of Sexual Harassment

The Commission has issued a fact sheet and updated its Frequently Asked Questions regarding the scope of the law’s training requirements. In these materials, the Commission specifies that employers are now required to provide certain independent contractors and freelancers with annual sexual harassment prevention training in accordance with the NYCHRL. Specifically, the Commission advises:

• Employers with 15 or more employees are required to provide independent contractors and freelancers with sexual harassment training if the independent contractor or freelancer works (a) more than 80 hours in a calendar year, and (b) for at least 90 days (which does not need to be consecutive). Independent contractors or freelancers who work less than 90 days, or less than 80 hours in a calendar year, do not need to be trained.
• Independent contractors and freelancers are not required to take the sexual harassment training at every workplace where they work over the course of a year and may provide proof of completion of one sexual harassment training to multiple workplaces.

Employers should note that, when calculating whether an employer has 15 employees, and is therefore required to provide sexual harassment training, the Commission has advised that:

• independent contractors and freelancers must be counted towards this 15-employee threshold, regardless of the number of days and hours that they work; and
• individuals not based in New York City will also count towards this 15-employee threshold (e.g., an employer with 10 employees based in New York City and 5 based elsewhere will meet the 15-employee minimum).

Regarding an employer’s potential liability for an independent contractor’s or freelancer’s conduct, the Commission’s fact sheet provides that:

Employers will be liable for discriminatory acts committed by independent contractors and freelancers if the conduct occurred in the course of the independent contractor’s or freelancer’s work for the employer and the employer had actual knowledge of the discriminatory behavior and acquiesced in such conduct, by, for example, failing to take steps to stop the conduct.

Next Steps

To comply with the new law, New York City employers with 15 or more employees must ensure that any independent contractor or freelancer who works 80 hours in a calendar year and for at least 90 days receives the appropriate sexual harassment training.

Additionally, employers should review their employment policies generally to ensure that they address the protections afforded to independent contractors and freelancers under this new law (e.g., policies prohibiting harassment and discrimination, and addressing reasonable accommodations).

Please do not hesitate to contact any of our attorneys if you have any questions regarding this new law or your company’s training obligations generally, or if you need assistance reviewing your company’s policies for compliance with this new law.