It took more than a year, but regulations finally have been approved to give employers guidance regarding their obligations to provide sexual harassment training pursuant to California Government Code Section 12950.1 (AB 1825).
It took more than a year, but regulations finally have been approved to give employers guidance regarding their obligations to provide sexual harassment training pursuant to California Government Code Section 12950.1 (AB 1825).
As we reported in our November 2004 California Management Law Update, as of January 1, 2006, all employers with 50 or more employees are required to conduct mandatory sexual harassment training of all supervisors. The training must be at least two hours in length and must cover certain specific topics. Each supervisor must be trained at least every two years, and a newly hired or newly promoted supervisor must be trained within six months of assuming supervisory roles.
While the statute provided some information, there were substantial gaps in the legislation, which required significant interpretation and “tea leaf” reading until the regulations were finalized. Many of those questions have now been answered.
Who is a Covered Employer?
The regulations define covered employer as one having 50 or more employees. To determine whether an employer has 50 or more employees, you need to count all full-time and part-time employees, as well as contractors. Additionally, if an employer has had 50 or more employees in 20 or more consecutive weeks in the current or prior year, that employer is required to provide the training. Significantly, not all of the employees must be located in California. So, if an employer has 10 employees in California and 40 employees in other states, that employer must comply with the requirements of the statute and regulations.
Who is a Supervisor?
Another term that has now been defined is the term “supervisor.” A supervisor, for purposes of this statute, is anyone who has the ability to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or direct them, or adjust grievances or effectively recommend that action. A supervisor must also utilize independent judgment. Significantly, employers are only required to train supervisors located in California. Although language was proposed that would have required training anyone who supervised employees in California, even if the supervisor was not located in California, that language was ultimately rejected.
What Types of Training are Permitted?
Much was discussed about what form the training must take and who is qualified to conduct the training. The regulations approve live training, e-training, and webinars/webcasts, but dictate certain requirements for each. All of the forms of training must include questions that assess learning, skill-building activities assessing understanding, and numerous hypothetical scenarios with questions.
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Live Training: Of course live training, by a trainer as defined below, is always permitted, provided it meets the other requirements set forth.
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E-Learning: The regulations expressly permit “e-learning.” If an employer elects to use an “e-learning” program, the program must be developed and approved by trainers and instructional designers. Additionally, there must be an opportunity for the supervisor to seek guidance and ask questions of a trainer, and employers must ensure that the trainer responds to the questions no more than two business days after the question is asked.
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Webinars/Webcasts: Another approved method of training consists of webinars or webcasts. If an employer elects to use this type of training, it must ensure that the supervisor takes the entire program, and there must be documentation of active participation during the program, such as interactive content, questions, hypothetical scenarios, etc.
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Other Programs: The regulations also provide for other “effective interactive training” programs.
Who May Conduct the Training?
To be qualified as a “trainer,” the individual must be either: (a) an attorney admitted to practice in any state for more than two years and whose practice includes employment law; or (b) a “human resources professional” or “harassment prevention consultant” with a minimum of two or more years of practical experience in areas related to sexual harassment, including training, responding to complaints, conducting investigations into sexual harassment complaints and/or advising employers or employees regarding discrimination/retaliation/harassment prevention; or (c) a professor or instructor in law school, college or university, who has a post-graduate degree or California teaching credentials and either twenty instruction hours or two or more years of experience teaching employment law. Individuals who do not meet these qualifications because they lack the requisite years of experience may team teach with a trainer, provided the trainer supervises the individual and is available throughout the training to answer questions.
What Subjects Must the Training Cover?
The regulations specify certain subjects that must be covered in the training. Mandatory training subjects include: (a) the legal definition of sexual harassment; (b) statutory provisions; (c) types of conduct constituting harassment; (d) remedies available to harassment victims; (e) strategies to prevent harassment; (f) practical examples; (g) limited confidentiality of the complaint process; (h) resources available to victims of harassment; (i) employer’s obligation to conduct an effective investigation; (j) what to do if the supervisor is personally accused; (k) antiharassment policy elements; (l) how harassment complaints are filed; and (m) how to prevent harassment, discrimination, and retaliation. If an employer so chooses, it may address other forms of harassment as part of the training program.
What is Training Year Tracking?
Because all supervisors must be trained every two years, and within six months of being hired or promoted into a supervisory role, the regulations provide guidelines for how to track the training conducted. The regulations discuss “Training Year Tracking” or TYT. Using the TYT method of tracking, the training employer may designate the “training year” and retrain by the end of the next training year, two years later. Newly hired or promoted supervisors trained within six months of assuming supervisory duties may be included in next group training year, even if that is sooner than two years. Employers can shorten but not lengthen the training year.
It is the employer’s burden to establish and verify that all supervisors are appropriately trained in a timely manner. To verify the training, records must be maintained reflecting the name of supervisor being trained, the date on which the training occurred, the type of training, and the name of the trainer. Training records must be maintained for a minimum of two years.
Employers’ Bottom Line:
Sexual harassment training for supervisors is now the “law of the land” in California. If you have any questions regarding the new regulations or the law mandating sexual harassment training, please contact the Ford & Harrison attorney with whom you usually work or the author of this article, Helene Wasserman, 213-237-2403, in our Los Angeles office.
Helene is the host of the Employer Helpcast, which is a "one stop website" for both "nuts and bolts" employment law advice and insight into new legal developments affecting employers. The Employer Helpcast can be found at http://employerhelpcast.blip.tv.