After considerable delay, the California Fair Employment and Housing Commission’s (“FEHC”) Sexual Harassment Training & Education Regulations were approved on July 18, 2007, by the Office of Administrative Law and will become effective on August 17, 2007.
The final regulations clarify several aspects of the sexual harassment training law (Government CodeSection 12950.1), which became effective on January 1, 2005, with the passage of AB1825. Section 1250.1 requires that covered employers provide at least two hours of harassment training to all supervisory employees every two years. The regulations reaffirm that new supervisors must receive the training within six months of becoming a supervisor.
It is important to note that the final regulations will apply prospectively, which means that employers who conducted harassment training in accordance with the statutory requirements of Government Code Section 12950.1 prior to the effective date of the regulations will be deemed to be currently in compliance with the mandatory training law.
The final regulations provide that all employers who employ or engage 50 or more employees or independent contractors anywhere, including those supervisors who are located outside of California, are covered by the mandatory training law. However, the regulations limit the training requirement to only those supervisors who are physically located in California.
In addition, the final regulations reaffirm that the training must be “interactive” and conducted by a trainer or educator who has legal or extensive practical experience in training on the prevention of sexual harassment, discrimination and retaliation. The training can be conducted in a classroom setting, through e-learning or webinars, provided the attendees can effectively participate in the discussion, hypotheticals, and the questions and answers.
The final regulations allow employers to track the mandatory training for each supervisor on either an individual basis or by using a “training year.” Employers may designate a “training year” in which all covered supervisors will be trained. These supervisors must then receive the next round of training by the end of the next “training year,” which would be two years later. For example, if supervisors received training sometime during the “training year” 2005, these supervisors must receive training again by the end of 2007.
Employers must maintain accurate records of who was trained, when the training took place, the type of training (classroom, e-learning or webinar), and who conducted the training. These records must be kept by the employer for a minimum of two years.
The final regulations state that the mandatory training must include the following:
- Definition of unlawful sexual harassment under both state and federal law. The training may also include other forms of unlawful harassment.
- Discussion of the state and federal statutes and relevant case law principles concerning the prevention of and prohibition against sexual harassment.
- Description of the type of conduct that constitutes sexual harassment, including practical examples of sexual harassment.
- Remedies available for sexual harassment.
- Prevention strategies for supervisors.
- Role playing, case studies or group discussion of examples and hypotheticals that illustrate sexual harassment, discrimination and retaliation.
- Discussion of the limited confidentiality of the complaint and investigative process.
- Resources available to raise complaints of sexual harassment and to whom employees should report sexual harassment.
- Discussion of the employer’s obligation to effectively investigate complaints of harassment.
- Discussion of the supervisor’s responsibilities when he/she is personally accused of sexual harassment.
- Discussion of the essential elements of a harassment policy. Employers must distribute a copy of their harassment policy to the supervisors during the training. Supervisors must acknowledge receipt of the policy.
Impact: The final regulations provide a road map for the development and implementation of an anti-harassment training program. However, employers should bear in mind that compliance with the training requirements set forth in Government Code Section 12950.1 and in the final regulations may provide only minimum protection from liability for unlawful harassment.
Employers should consider expanding their training program to include training on all forms of unlawful harassment, not just sexual harassment, and training for all supervisors who have direct reports in California. These individuals can create employer liability if they engage in inappropriate behavior towards California employees. In addition, employers should consider providing some training to all employees in order to maintain a workplace that is free from all forms of unlawful harassment.
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If you have any questions about the information contained in this Client Alert, Steven R. Blackburn at 415.398.3500, email@example.com in our San Francisco office.
This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.