New Jersey Sexual Harassment Training Requirements

On February 18, 2020, New Jersey Governor Phil Murphy announced broad legislation to combat harassment in the workplace, including a requirement that all employers provide training on unlawful harassment and discrimination.

Under the legislation proposed by Governor Murphy, all employers in New Jersey will be required to provide all employees interactive training on preventing unlawful workplace harassment and discrimination, beginning one year after enactment.  Several related bills have been introduced in the New Jersey legislature over the past several months.

The following FAQs are based on the New Jersey SB 3352 and are intended to help organizations prepare for the anticipated New Jersey training requirements.  Traliant will continue to report on future developments and will provide further details as new information becomes available.

New Jersey Sexual Harassment Training FAQs

Which employers must provide training?

If enacted, this legislation will require all employers to provide annual sexual harassment training to all employees.

What employees must receive sexual harassment training?

If enacted, this legislation will require employers to train all employees, including interns. Depending on which version passes, the law may require employers to train all independent contractors and stakeholders who perform services for the employer.

When is the initial deadline to provide sexual harassment training to employees?

If enacted, this legislation will require employers to train employees beginning one year after the effective date of the law.

When must employers train new employees and new supervisors?

If enacted, this legislation will require employers to provide interactive training to all new employees within 90 days of hire and all new supervisors within 90 days of initial hire or promotion to a supervisory position.

Must employers provide periodic retraining to employees?

Yes. If enacted, this legislation will require employers to retain all nonsupervisory and supervisory employees once every year.

Employers may track annual training either by a calendar year or from the day of the last training delivery.

If the employer sponsors online asynchronous learning, employees may take the training incrementally throughout the training year, as long as all of the required content is presented to each employee throughout the year.

What content must the training include?

If enacted, this legislation will require the training for all employees to include, a minimum, the following:

• A statement that unlawful discrimination or harassment in the workplace will not be tolerated and that sanctions will be enforced against individuals engaging in discrimination or harassment and against supervisory and managerial personnel who knowingly or negligently allow the discrimination or harassment to continue

• A definition of unlawful employment discrimination and harassment

• Examples of discriminatory and harassing behaviors prohibited by the employer’s policy (which the law will require all employers to adopt)

• A description of the employer’s internal process for reporting complaints about discrimination or harassment

• Directions as to how to contact the New Jersey Division of Civil Rights if the person believes their rights were violated

• A description of the prohibition on retaliation against those who disclose, report, participate in an investigation of or otherwise challenge discrimination or harassment

• Examples of retaliatory behaviors prohibited by the employer’s policy (which the law will require all employers to adopt)

• Bystander intervention information

• Information regarding internal and external resources available to employees

Training for supervisors must include all of the above, as well as the following additional information:

• the specific responsibilities of a supervisor to prevent discrimination and harassment

• the specific responsibilities of a supervisor to prevent retaliation

• measures and corrective actions supervisors may take to address complaints and instances of discrimination, harassment, and retaliation

Are employers required to provide bystander intervention training?

Yes. If enacted, this legislation will require employers to train all employees on bystander intervention.

Bystander intervention training provides employees who may see sexual harassment occurring in the workplace with the skills and confidence to intervene, and the resources for support if they are unable to intervene. Empowering employees to recognize sexual harassment and proactively respond enables a more positive workplace.

Traliant’s online Preventing Workplace Harassment covers the prevention of sexual harassment and all forms of harassment, discrimination, and retaliation, as well as bystander intervention, workplace civility, and bullying prevention.

May employers provide the training through online courses?

Yes. If enacted, this legislation will permit employers to deliver the required training in an online interactive format.

Employers with 50 or more employees (anywhere) may provide the training through interactive online asynchronous learning where employees may ask questions anonymously and receive responses from trainers within two business days, or they may elect to provide the training in a live in-person setting where participants may ask questions.

What constitutes “interactive training”?

If enacted, this legislation will require “interactive training” to be participatory. If provided via online asynchronous training, the program must enable employees to ask questions anonymously and receive responses to their questions from trainers within two business days. Also, the training program must monitor active employee participation, such as time spent watching videos, answering questions, and otherwise engaging in the program.

Must the training be a certain length?

The legislation does not establish a minimum length for the required training.

Must the employer provide its training in languages other than English?

Yes. If enacted, this legislation will require employers to provide sexual harassment prevention training in English and any other language spoken by an employee whose primary language is not English and who has limited ability to understand English.

Do employers have to pay employees for the training time?

Yes. While the New Jersey sexual harassment training legislation does not specifically address this issue, time spent taking employer-provided training is generally considered hours worked under federal law.

What are the employer’s training recordkeeping requirements?

The law will require employers to keep a record of employees’ completion of all training completed for at least four years. Emploeyrs may maintain these records electronically.

Employers must provide certification to the Division that the training has been conducted and must make their training records available for inspection upon request by the Divison on Civil Rights.

Are employers required to have a sexual harassment prevention policy?

Yes. If enacted, this legislation will require all employers to adopt a written policy addressing discrimination and harassment prevention in the workplace. The policy must apply to all employees in their interactions with each other and with vendors, suppliers, customers, clients, invitees, and patrons. Employers must distribute the policy

• annually to all employees:

• to new employees at the beginning of employment;

• to all employees whenever any changes are made to the policy;

• to any employee who makes a complaint under the policy at the time of the complaint; and

• to any employee who is interviewed in connection with an investigation into an alleged policy violation at the time of the interview.

The law will also require employers to make the policy available in English, Spanish, and any other language spoken by an employee whose primary language is not English and has limited ability to understand English.

Additionally, the law will require employers to review their policy at least once a year to ensure continuing compliance with appliable laws and regulations.

The law will require employers to include, at a minimum, the following content in their policy:

• a statement that unlawful discrimination or harassment in the workplace will not be tolerated, and that the employer will enforce sanctions against persons who engage in unlawful discrimination or harassment and against supervisory personnel who knowingly allow such behavior to continue;

• a definition of unlawful employment discrimination and harassment;

• examples of prohibited discriminatory and harassing conduct;

• a description of the process for filing internal complaints, including complete contact information of the person(s) to whom complaints should be made;

• directions as to how to contact the New Jersey Division on Civil Rights if a person believes their rights were violated;

• the statute of limitations periods applicable to filing a claim of unlawful discrimination and harassment under the Law Against Discrimination;

• a prohibition on retaliation against anyone who discloses, reports, participates in an investigation of, or otherwise challenges prohibited discrimination or harassment;

• examples of prohibited retaliatory conduct;

• a description of potential consequences for violating the policy; and

• a statement of the employer’s commitment to conducting prompt, thorough, and impartial investigations of discrimination, harassment, or retaliation complaints.

Employers with at least 50 employees (anywhere) will be required to include additional content, disseminate the policy through additional channels, and translate their policy into additional languages.

What are some of the other harassment prevention-related changes in the law that will affect employers?

In addition to the training requirements outlined above, the legislation, if enacted, will result in multiple changes to New Jersey’s discrimination laws, including but not lmiited to the following:

• expand the scope of the New Jersey Law Against Discrimination (NJLAD) to include independent contractors, temporary workers, interns, fellows, apprentices, or trainees who perform services in exchange for a salary or wage, and regardless of whether the individual owns shares of stocks n the employer; and domestic workers

• expand protected characteristics to include, among others, familial status, perceived disability or other protected characteristic, association with a person with a perceived or actual protected characteristic, the status of being in transition to having a protected characteristic, or transitioning from one protected characteristic to another

• eliminate the current 70-year threshold in the age discrimination prohibition

• codify the standard for establishing a hostile work environment  (e.g., employee need not show that the harassment was severe or pervasive; need not demonstrate loss of tangible job benefits or that their tangible productivity declined because of the harassing conduct)

• extend the statute of limitations for filing a complaint with the New Jersey Division of Civil Rights

• require employers with at least 50 employees anywhere in the world to collect information on the number and types of complaints of unlawful discrimination, harassment, or retaliation, broken down by the protected classification alleged by the complainant; and to submit an annual report to the Division on Civil Right

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