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California Regulators Clarify Mandatory Sexual Harassment Training Law

February 01, 2007

On November 14, 2006, the California Fair Employment and Housing Commission issued regulations interpreting California’s mandatory sexual harassment training law. The regulations are now proceeding through the administrative review process and are expected to become final in March 2007. The regulations contain significant detail regarding the requirements of the training and impose new burdens on employers who have not yet completed the required training.

Background
AB 1825, California’s mandatory sexual harassment training law (codified at Cal. Lab. Code § 12950.1), was adopted by the California legislature in 2004. The law requires employers to provide at least two hours of sexual harassment training to supervisory employees every two years. Starting on January 1, 2006, all employers with 50 or more employees were required to provide training for supervisors located in the state of California once every two years. Thankfully, the regulations include a provision which exempts employers who have already trained their supervisors after January 1, 2006 from retraining those supervisors under the more strict demands of the new regulations.

Questions
Significant questions regarding the scope of AB 1825 remained unanswered after the law was adopted. The new regulations answer many of these questions, as well as add significant detail to the requirements of AB 1825.

Which employers are covered under the law?
The regulations clarify that there is no requirement that all of the 50 or more employees or contractors work at the same location or all work in California. In other words, if an employer has 100 employees in Wisconsin, with 5 employees in California, the employer will be required to train all supervisors located in California in accordance with AB 1825.

Which supervisors must receive training in accordance with AB 1825?
When the law was adopted it was unclear whether all supervisors, even those located outside California, would have to be trained in accordance with the law. The regulations clarify that the training is required for supervisors located in California only.

Who is a supervisor?
AB 1825 itself did not define “supervisor” for purposes of the training requirements. The Fair Employment and Housing Act (FEHA), however, did provide a working definition which employers assumed applied to AB 1825. The regulations adopt the definition from the FEHA, providing that a supervisor is 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. Govt. Code § 12926(r).) Titles alone do not determine whether an employee is a supervisor. The regulations also note that attendance at the harassment training does not create an inference that the employee is a supervisor or that a contractor is an employee of the employer.

Who can develop and provide the training?
The regulations specify the qualifications of the individuals who are authorized to provide training under the law. Three definitions are important in determining whether trainers are qualified:

  • A “qualified trainer” is defined as an individual who, either through formal education and training or substantial experience, can effectively lead in-person sessions or real-time sessions over the internet.
  • An “instructional designer” is defined as an individual with expertise in current instructional best practices and who develops the content based on material provided by a “subject matter expert.”
  • A “subject matter expert” is defined as an individual with legal education coupled with practical experience or substantial practical experience in harassment training. In addition, a subject matter expert must be qualified to train about: (1) unlawful harassment, discrimination and retaliation under both federal and California law; (2) what steps to take when harassment occurs; (3) how to report harassment; (4) how to respond to a harassment complaint; (5) the employer’s obligation to conduct investigations of complaints; (6) what constitutes retaliation and how to prevent it; (7) essential components of an anti-harassment policy; and (8) the effect of harassment.

What are the training requirements?

In-person classroom training must be provided to a supervisor by a qualified trainer. Questions and feedback, however, can only be answered and provided by a qualified trainer who is also a subject matter expert. If the qualified trainer is not a subject matter expert, then a subject matter expert must be available to answer questions and provide feedback during the training session or within two business days. Since a subject matter expert is also by definition a qualified trainer, it is advisable to procure training from an individual meeting the definition of a subject matter expert to hold costs down.

Computer-based training must be interactive and written, developed and approved by a qualified trainer, an instructional designer or a subject matter expert. The computer program must provide information or a link to contact subject matter experts, who must be available to respond to questions or provide feedback within two business days after the question is asked or feedback sought. A webinar is an internet-based seminar transmitted in real time. Webinars must be taught by qualified trainers. An employer using this method must document and demonstrate that each supervisor who was not physically present in the same room as the trainer did in fact attend the training over the internet and did actively participate. A webinar must provide a method for asking questions and seeking feedback.

What content must be included in the training?
The regulations also provide required content of the training session. The training must include, but is not limited to:

  • A definition of sexual harassment under California and federal law;
  • What types of conduct constitute sexual harassment;
  • Remedies available for sexual harassment in the workplace;
  • The limited confidentiality of the complaint process;
  • Resources available for victims;
  • The contact people victims should report to within the organization;
  • A description of the employer’s obligation to conduct an investigation of a complaint; and
  • Training on what to do if the supervisor is personally accused of the harassment.

One important aspect of the new regulations is a requirement that every employer provide each supervisor with a copy of its anti-harassment policy and require the supervisor to read and acknowledge receipt of the policy. Therefore, it appears that employers are required by law to establish an anti-harassment policy. Although having such a policy was strongly encouraged in the past, it was not previously required by statute or regulation.

How is completed training to be documented?
Documentation of training must include the name of the supervisory employee trained, the date of training, the type of training and the name of the training provider. Records of training must be kept for a minimum of two years.

Do new supervisors to a company need to be trained if they received training at their previous employer?
If the training at the prior employer was less than two years prior, then the new employer is only required to provide a copy of the new employer’s anti-harassment policy. The burden, however, of establishing that the prior training was compliant with the law is on the new employer.

What are the penalties for noncompliance?
Employers with any supervisor employees in the state of California must be aware of the mandates of AB 1825, as detailed in the new regulations. Failure to meet the requirements of the law will result in an order from the Fair Housing and Employment Commission directing the employer to conduct the harassment training within 60 days. More importantly, however, an employer’s failure to provide the required training could be used against them in a sexual harassment claim. An employer’s affirmative defense against a sexual harassment claim may be weakened or denied completely if proper training, as required by law, was not provided.

For more information, please contact Tom O’Day at 414-287-9523 or today@gklaw.com, or another member of the Godfrey & Kahn Labor & Employment Law Team.

See publication.cfm?publication_ID=368 for additional information on this topic.

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