July 29, 2007 Final Sexual Harassment Training Regulations Issued

Summary

Last week, the California Fair Employment and Housing Commission issued long-awaited final regulations governing the supervisor sexual harassment training requirement enacted in 2005 by AB 1825. These regulations go into effect on August 17, 2007 and contain detailed definitions that allow employers to identify whether they fall within the scope of the training requirement and, if so, how their training obligations can be met.

Details

Covered Employers Broadly Defined: The regulations provide that all public employers in California are covered, regardless of the number of employees. Moreover, all private employers in California who have at least 50 employees (including part time and temporary workers), contractors or agents, are covered by the training obligations. The 50 employee threshold is tested by looking at the number of employees or contractors employed in any 20 consecutive weeks during the current or preceding calendar year. Significantly, there is no requirement that the 50 employees or contractors work at the same location or that they all work or reside in California. Also, there is no requirement that employees be actively employed, thus employees on leaves of absence should be counted.

Qualified Training and Trainers Defined: The new regulations emphasize both how the training is conducted and by whom.

Trainers must be well-versed in all aspects of unlawful harassment, discrimination and retaliation under both California and federal law. In addition, a trainer must be an attorney, human resource professional or harassment prevention consultant, or a professor or instructor at a law school, college or university, and must possesses certain specific training and experience requirements.

Trainings must be two hours long, interactive, and include specific content. Although two hours of training must be provided every two years, or within six months of an employee becoming a supervisor, the two hours need not be consecutive. The training can be divided up into separate sessions lasting one-half hour or more.

The regulations provide that the following content must be included in the training:

- legal definition of sexual harassment
- state and federal legal principals regarding sexual harassment, discrimination and retaliation
- types of conduct that constitute sexual harassment
- practical examples that illustrate sexual harassment, discrimination and retaliation
- avenues available for victims to complain
- employer’s obligation to investigate complaints
- limited confidentiality of complaint process
- what to do if supervisor is personally accused
- remedies available to victims
- strategies to prevent sexual harassment

In addition, employers are required to distribute, and have each supervisor sign an acknowledgment that they have received and agree to read, the company’s anti-harassment policy.

While the content of the training sessions is important, equally significant is the mandatory interactive aspect of the trainings. The training must include questions that assess learning and “numerous hypothetical scenarios” with one or more discussion questions. This means that when training is offered through e-learning or an internet-based seminar (“webinar”), there must be a link or other method for the supervisor to ask questions and receive prompt answers or guidance. For example, webinars, which are administered in “real time,” presumably should answer questions immediately. And, questions posed by supervisors during e-learning sessions must be answered within two business days.

Tracking Training Hours: Although traditional classroom training is relatively easy to conform to the two hour requirement, electronic training forums can present a challenge. Employers should avoid programs that may be completed too quickly (i.e., two hour’s worth of information that may be quickly glossed over by clicks of the mouse.) Electronic programs should contain built-in mechanisms to ensure supervisors are appropriately paced to complete the session in two hours. Further, employers using webinars must be prepared to demonstrate that supervisors attended the entire two-hour session and actively participated. Employers should thus utilize webinar platforms that have the capability to track and record attendance and participation.

In addition, employers must maintain records of the training, including names of supervisors trained, date trained, type of training, and name of the trainer. At the employer’s option, the two years may be measured for each individual supervisor based on his or her own past training or by “training year” (i.e., an employer-defined training year in which it trains all or some of its supervisory employees and then retrains these supervisors two years later.) Regardless of the method used, training records must be kept for two years after the completion of the session.

Finally, the regulations clarify that a new supervisor who received training from a prior employer need not be re-trained within six months of hire, but may be placed on a two-year tracking schedule based on their last training. Notably, however, the supervisor must sign an acknowledgment that they have received and agree to read the company’s anti-harassment policy.

What This Means

Although most California employers have already established sexual harassment training programs, now is a good time to review them to make sure they measure up to the detailed requirements imposed by the new regulations. Employers should carefully consider the provider and format for the trainings, and carefully screen vendors to ensure they meet the requisite qualifications.

This E-Update was authored by Jennifer Baumann and Denise Brucker of Paul, Plevin's Transactional Practice Group.  For more information, please contact Ms. Baumann, Ms. Brucker, or any Paul, Plevin attorney at 619.237.5200.

Last Chance for Preventing Workplace Harassment Training in 2007

Paul, Plevin will host it's final Working Together To Prevent Workplace Harassment training session of 2007 on Friday, September 28 from 8:00 to 10:00 a.m.  If you have supervisors that have been newly hired, recently promoted or have not received mandatory training then you should not miss this opportunity.

Click here to download a brochure

Register on-line here or contact Paul, Plevin at 619.237.5200

Save the date for Paul, Plevin's Employment Law Update 2008 Seminar

Paul, Plevin's Employment Law Update 2008 Seminar will be held on Thursday, November 1st, 2007 from 8:00 a.m. to 12:00 p.m.  Be sure to reserve this date on your calendar.