California's Requirements for Sexual Harassment Training

By Barrie Gross

California passed a law in 2004 (effective at year-end 2005) called AB 1825. It requires that employers of a certain size provide training to supervisors on preventing and eliminating sexual harassment in the workplace. Supervisors

Unfortunately, AB 1825 is not very specific regarding who is qualified to design and deliver the training, the type of training media that is permitted, or the subject matter content that must be included. Finally, in late summer 2007, after at least six versions of draft regulations, the Office of Administrative Law approved the regulations and employers now have some guidance for designing compliant training programs.

This article summarizes the requirements based on the regulations approved in July 2007. It is important, however, that employers check with their human resources departments or legal counsel each year to determine if these regulations have been amended.

Whether you plan to create and deliver the training internally or use outside vendors, employers should have a general familiarity with the regulatory requirements beforehand. Otherwise, you may not be aware that, despite your best efforts, the product you used is not compliant. Also, multistate organizations can consider designing or contracting for training courses that also meet training obligations in other states such as Connecticut and Maine. Finally, you can consider using California's supervisor training requirements to roll out harassment training programs to your entire workforce. The benefits of an educated workforce will go a long way toward minimizing risk and supporting a culture that lets employees know you care about the environment in which they operate every day.

In summary, the California regulations under AB 1825 provide:

Covered Organizations:

• Employers subject to AB 1825 are engaged in business in California and employ 50 or more employees (including contractors and agents). Also included as an "employer" are the state of California, and counties and political subdivisions (including governmental and quasi-governmental entities). In counting the number of "employees," you must include "employees" inside and outside of California.

Supervisors to Be Trained:

• Only supervisors who are located in California must be trained. Fortunately, the regulations provide that if you include someone in the training who may or may not be a supervisor, the fact that the person attended the training does not create an inference that the person is, in fact, a supervisor. This allows employers to err on the side of inclusion.

Frequency of Training:

• Supervisors must be trained at least once every two years, tracked by either the "individual" tracking method or "training year" tracking. Specific definitions of the tracking methods are included in the regulations.
• Newly hired supervisors and people promoted into supervisory positions must be trained within six months of assuming the supervisory position. If the person received compliant training in the two years before assuming the new role, you are required only to give the person a copy of your sexual harassment policy and require them to sign an acknowledgement that they received and read the policy. After that, the person needs to be trained once every two years. This also applies if the supervisor received the training with a prior employer and you can get a written confirmation of that fact from the prior employer or trainer.

Training Media:

• Classroom (live), webinar, and e-learning are three specifically accepted media for the training. These methods can also be combined.
• Other media that is considered to be effective interactive training also is acceptable, but that has not been defined in the regulations.

Interactive E-Learning:

• With e-learning, there must be links in the training course that allow the participant to ask questions of a qualified trainer, or that explain how the participant may contact a qualified trainer with questions. Questions must be answered within a reasonable time (no more than 2 days after a question is asked).

Length of Training:

• The training must be at least two hours long. For e-learning, the course must be designed so that it takes no less than two hours to complete. For any of the media, the two-hour requirement is in addition to any breaks.

Trainers:

• Trainers must have the training and experience to train on specified subjects (discussed further below). Instructional designers must be developing the training using materials that are provided by trainers who are qualified under the regulations.
• The regulations contain specific criteria regarding who is considered to be a qualified trainer and course developer. Included are criteria for the qualifications of attorneys, HR professionals, training consultants, and professors and instructors.
• Someone who does not meet the criteria for being a trainer is permitted to assist with the training, under the direct guidance of and in partnership with a qualified trainer.

Required Content:

• The content must include questions that assess learning, skill-building activities to measure understanding and application, and hypothetical scenarios with questions. This is to help ensure that the participants stay engaged during the training sessions.
• The required subject areas are:
  • Definitions of unlawful sexual harassment under California state and federal law
  • California state and federal statutory and case law principles about the prohibition against and prevention of sexual harassment, discrimination, and retaliation in employment
  • The types of conduct that constitute sexual harassment
  • The remedies for sexual harassment
  • Strategies to prevent sexual harassment
  • "Practical examples," such as factual scenarios taken from case law, news, and media accounts; hypothetical scenarios based on workplace situations and other sources which illustrate sexual harassment, discrimination, and retaliation using training modalities such as role-play, case studies, and group discussions
  • The limited confidentiality of the complaint process
  • Resources for victims of unlawful sexual harassment, such as to whom they should report any alleged sexual harassment
  • The employer's obligation to conduct an effective workplace investigation of harassment complaints
  • Training on what to do if the supervisor is personally accused of harassment
  • The essential elements of an anti-harassment policy and how to use it if a harassment complaint is filed. Either the employer's policy or a sample policy must be provided, and regardless of whether the employer's policy is used as part of the training, each supervisor must be given a copy of the organization's anti-harassment policy and be required to read and acknowledge receipt of the policy.

Record Keeping:

• You must maintain records that include the name of the supervisor who was trained, the date of the training, the type of training, and the name of the training provider.
• You need to maintain these records for at least two years from the date the person attended the training.

Penalties for Noncompliance with AB 1825:

• The Fair Employment and Housing Commission is authorized to enter a noncompliance order against you and can require compliance within 60 days of the order.
• In addition to the penalties in the regulations, it's important to consider the other possible consequences to your company for failing to comply. For example, current or former employees who file harassment charges or lawsuits against you can use the absence of training to try to prove liability. Also, you may not be able to present all the legal defenses to their claims that would otherwise be available to help prevent a finding of liability or to minimize damage awards against you.

While it will take an effort and a commitment of resources to comply with AB 1825, there are some very good upsides to the law. By providing the training, you are helping to minimize risk while you send an important message to your workforce that you respect the need to provide them with a safe and healthy work environment. The training presents an opportunity to open up broader communications so that when problems happen, you can find out about them and correct them. If you can react quickly in situations involving inappropriate conduct, you have a better chance of saving relationships with valued employees. And this is entirely consistent with the underlying goals of AB 1825.