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California Mandates Sexual Harassment Training

New law could apply to companies headquartered outside of California
March 2005

See publication.cfm?publication_ID=574 for the latest information on this topic.

On September 30, 2004, the California legislature adopted Assembly Bill (AB) 1825, which requires employers to provide all supervisory employees with two hours of sexual harassment training every two years. The deadline for compliance with AB 1825 is January 1, 2006. Employers need to take steps now to determine their obligation under this new law.

Step One: Are you a covered employer? 
The first step is to determine whether or not the law applies to you. AB 1825 covers all employers who operate in California and who regularly employ 50 or more employees. Independent contractors and temporary employees are counted as employees for coverage purposes. If an employer employs 50 or more individuals within the state of California it is covered. The text of the legislation, however, does not clarify whether the law applies to employers who do not employ all 50 individuals within the state of California. If you are an employer who employs 50 or more employees within and outside the state of California, our advice is to comply with AB 1825.

Step Two: Do you employ any “supervisor” who must be trained?
AB 1825 does not define the term “supervisory employees.” California’s Fair Employment and Housing Act (FEHA), however, does provide guidance by defining “supervisor” to include any individual with the authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if… the exercise of that authority…requires the use of independent judgment.” (Cal. Code Section 12926(r)). Titles alone do not determine whether an individual is a “supervisor.”

Step Three: What deadlines must employers comply with under the new law?
Employers must comply with AB 1825 by January 1, 2006. The only exception is if the employer has provided at least two hours of sexual harassment training meeting the law’s content requirements since January 1, 2003. If not, the employer must again provide training to its employees before January 1, 2006. As of July 1, 2005, all individuals assuming supervisory positions must be trained within six months of their assumption of a supervisory position. Beginning on January 1, 2006, the employer must provide all supervisory employees with the mandated training once every two years. 

Step Four: What are the requirements of the training? 
AB 1825 is very specific with respect to the nature of the sexual harassment training and what it must contain. Specifically, the training must meet each of the following requirements:


  1. The training must be provided by “trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.” In other words, the instructor must be well versed in the complex body of harassment and discrimination laws, and keep up to date with new cases that change the interpretation of these laws. Because this law is so new, it is unclear whether the use of online training will satisfy the requirements of AB 1825. A careful analysis of any online sexual harassment training programs used should be conducted to determine whether the minimum requirements of AB 1825 are satisfied. 
  2. The training must be at least two hours in length.
  3. The training must be “effective, interactive and educational.”
  4. The training must provide “information and practical guidance” to learners. In other words, the training must be tailored to the particular workplace.
  5. The training must include instruction on federal and state law concerning sexual harassment.
  6. The training must address the prohibitions against and the prevention and correction of sexual harassment, and the remedies available to victims of sexual harassment.
  7. The training must use practical examples aimed at teaching supervisors in the prevention of harassment, discrimination and retaliation.

Step Five: Does AB 1825 training satisfy other suggested harassment training?
 
No, because the training specified in AB 1825 is limited to sexual harassment training. Sexual harassment is just one of many bases for harassment and discrimination prohibited by federal and state law. Simply training on sexual harassment will not satisfy federal and state training obligations relating to other types of harassment or retaliation cases. California employers must not only provide supervisors two hours of training every two years on sexual harassment, but they also should periodically provide additional training on other forms of workplace harassment and discrimination. Furthermore, the new law deals only with California employers’ responsibility to provide sexual harassment training to supervisors.  Employers still have a responsibility under California and federal law to provide workplace harassment prevention training periodically to non-supervisory employees as well.

Step Six: What should employers do now?
Employers covered by California’s new law should promptly engage in the following analysis:
 

  1.  Review your company training records since January 1, 2003. You will need to analyze who was trained on sexual harassment. You will also need to review the contents of the training to determine if all supervisory personnel received the training and if all the required elements of AB 1825 were met. 
  2. If you determine that a training course meeting the requirements of AB 1825 was provided to supervisory employees since January 1, 2003, the next step is to determine whether record-keeping is sufficient to prove that the training met all the requirements of AB 1825 and to show which employees received the training. You will want to gather all information and keep the documentation in a file should there be a question of compliance with AB 1825.
  3. Determine how the organization will track the training of its existing supervisory personnel and also track newly hired or promoted supervisors who also must complete the training.
  4. If you currently have a training product that you use, you will need to analyze the product and instructor to determine whether they comply with AB 1825. Perhaps it is time for a change. If this is the case, you will need to gather enough documentation from external resources to make sure that the new instructor and materials comply with AB 1825. 
  5. Plan and implement a proposed training schedule for training needs prior to, and beyond, January 1, 2006. Remember that AB 1825 requires that all supervisors who assume supervisory positions after January 1, 2005, must be trained within six months of hire or promotion, and then every two years after January 1, 2006. There should be internal protocols to track training since the hire date, as well as satisfying the two-hour requirement every two years going forward. Any training schedule should include periodic training on sexual harassment and all forms of unlawful harassment for all employees, not just those in supervisory roles. 

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