STATE-BY-STATE ROUNDUP - California – Sexual Harassment Training and Education Regulations Take Effect
October 8, 2007
Naomi F. Katz- Chicago
In 2004, the state of California passed Assembly Bill 1825, which created two sexual harassment training requirements for employers with 50 or more employees. First, those employers must provide two hours of sexual harassment training and education to each supervisory employee in California once every two years, with the first training completed by January 1, 2006. Second, employers must similarly train each new supervisory employee within six months after he or she assumes a supervisory position. Although the bill, which was codified as California Government Code 12950.1, seemed simple enough, it left employers with a variety of questions.
In an effort to answer many of these questions, the California Fair Employment and Housing Commission issued its Sexual Harassment Training and Education Regulations, which became effective on August 17, 2007.
Who is covered?
The regulations more clearly identify the employers who are covered and the individuals who must receive sexual harassment training. “Covered employers” are those who employ or engage 50 or more employees or contractors for each working day in any 20 consecutive weeks in the current calendar year or preceding calendar year. But not all 50 employees need to work or reside in California. Rather, an employer must comply with the training requirements if it has at least one supervisor in California, even if the majority of its employees work outside California. Training must be given to employees who qualify as “supervisors” under Government Code section 12926(r).
What types of training are sufficient?
The regulations elaborate on the topics that must be covered during training sessions. They also state that the training must be interactive and can be provided in a classroom, through e-learning (interactive, computer-based training), or through a webinar (an Internet-based seminar whose content is transmitted over the Internet or intranet in real time), as long as certain requirements are met. All training must include questions that assess learning, skill-building that assesses the supervisor’s application and understanding of the content, and numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain engaged in the training.
Who can be a trainer?
The regulations include a list of specific qualifications for those acting as a trainer. Trainers may include attorneys, human resource professionals, harassment prevention consultants, or professors or instructors in law schools, colleges or universities.
How do you track compliance?
Employers may use one of two methods, or a combination of the two methods, to track compliance with the training requirement. Under the individual training method, the employer simply tracks the training requirement for each supervisor by measuring two years from the date the supervisor previously completed training. Alternatively, an employer may designate a “training year” in which it trains some or all of its supervisors. It then must retrain these same supervisors by the end of the next training year, two years later. So, for example, if an employer provided training to its supervisors during 2005, the next training year is 2007, and the employer must train its supervisors at some point during that year.
Must new supervisors be trained if they received training while working for a prior employer?
The regulations also provide that a supervisor who has received training in compliance with the regulations within the prior two years from a prior, alternate, or joint employer is exempted from the requirement that he or she be trained within six months of assuming a supervisory position. Instead, the supervisor need only be given, be required to read, and to acknowledge receipt of, the employer’s anti-harassment policy within six months of assuming the supervisory position. That supervisor may then be put on a two-year tracking schedule based on the date of his or her last training. Employers should be very careful about relying on this exemption, however, because the current employer has the burden of showing that the prior training was legally compliant.
Must an employer repeat training that it provided earlier this year that did not comply with the regulations?
Because AB 1825 required employers to provide their first training session by January 1, 2006, many employers conducted training during 2005. Those same employers have conducted, or intend to conduct, additional training in 2007. Taking this fact into account, the regulations provide that an employer who made a substantial, good faith effort to comply with AB 1825 by training its supervisors before the effective date of the regulations will be deemed to be in compliance with the statute as though the training had been done under the regulations. Thus, the employers who trained California supervisors earlier this year will not need to repeat that training even if it did not comply with the regulations.
California’s training requirements are intended to prevent harassment and discrimination. Several other states have implemented training requirements, and more are likely to follow. Employers should thus consider providing the required sexual harassment training to all employees. Furthermore, just as AB 1825 explains that its training requirement is a minimum threshold and that employers may include discussions of other forms of workplace harassment and unlawful discrimination during their training sessions, it is recommended that employers do the same.
For more information, email Naomi F. Katz at naomi.katz@hklaw.com or call toll free, 1-888-688-8500.