Dec. 20, 2005 Newly Proposed Regulations for Sexual Harassment Training Under California Law

Summary

On December 16, 2005, the California Fair Employment and Housing Commission published for public comment proposed regulations interpreting the requirements of sexual harassment training under the California Fair Employment and Housing Act (FEHA), Government Code section 12950.1. (This section was added in 2004 by Assembly Bill 1825.)

Details

The FEHA now mandates two hours of sexual harassment training for supervisors of employers with 50 or more employees. By January 1, 2006, supervisors employed as of July 1, 2005, must have this training, and newer supervisors must receive training within six months of hire or promotion. After January 1, 2006, the statute requires supervisors to be trained once every two years.

Training Methods

The proposed regulations clarify what constitutes acceptable training under the statute. Training includes: 1) in-person, classroom instruction by a qualified trainer outside the supervisor’s workplace, 2) “e-learning,” which is individualized, computer-based training, and 3) “webinar” training, which is a web-based seminar taught by a qualified trainer. E-learning and webinars must be created by a qualified designer, and incorporate a feedback or participation component (i.e., testing of knowledge and opportunity for questions to be asked and answered) at least once every 15 minutes so that employees are measurably engaged in the training. The two-hour training time requirement is actual time and must be in at least half-hour segments, not necessarily consecutive, for classroom and webinar training. For e-learning, the two-hour requirement is the amount of time it would take an average learner to cover the content in a two-hour classroom or webinar training, and the minimum training segment is 15 minutes.

Calendaring Methods

The proposed regulations also explain how to calendar the training. An employer may use one or both of the following methods: 1) individual tracking by which each supervisor’s training requirement is measured two years from that supervisor’s last training, or 2) a designated training year in which the employer “trains its supervisors and thereafter must again retrain its supervisors by the end of the next ‘training year,’ two years later.” Businesses created after January 1, 2006, must provide training within six months of establishment, and then every two years by one of the calendaring methods described above.

Qualified Trainers

Under the proposed regulations, trainers may be California licensed attorneys, human resources professionals, psychologists or others, provided they have legal education or practical experience in harassment training and California anti-harassment law. Training must include: 1) a definition of harassment under the FEHA and Title VII of the Civil Rights Act of 1964, 2) federal and state statutory and case law concerning harassment, 3) conduct that constitutes harassment, 4) remedies available for harassment, 5) strategies to prevent harassment, 6) practical examples, such as role plays or group discussions (among other examples), 7) confidentiality of the complaint process, 8) resources for victims of harassment, 9) training on how to investigate a complaint of harassment, 10) training on what to do if a supervisor is personally accused of harassment, and 11) training on the content of the employer’s anti-harassment policy.

Out-of-State Supervisors

The proposed regulations also provide that the FEHA requires training of supervisors who are not physically located in California if they supervise California employees.

Good Faith Compliance

The proposed regulations will not become effective before the January 1, 2006, training deadline described above. However, they state that an employer who has made a substantial, good faith effort to comply with the FEHA by training its supervisors before the effective date of the proposed regulations will be deemed to be in compliance with the statute.

What this Means

The proposed regulations will not become final or effective until the public has had an opportunity to comment. The California Fair Employment and Housing Commission will hold two public hearings, one in San Francisco on February 1, 2006, and one in Los Angeles on February 10, 2006, to receive public input on the proposed regulations. The public may also submit written comments by 5:00 p.m. February 10, 2006, by mail or email at regs@fehc.ca.gov. We will issue another E-Update when the final regulations are published. For more information, click here.

This E-Update was authored by Fred Plevin and Martina Nagle. For more information, please contact Mr. Plevin, Ms. Nagle, or any Paul, Plevin attorney at 619-237-5200.