California Extends Compliance Deadline for New Harassment-Prevention Training

 

By Michael S. Kalt September 5, 2019
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Gov. Gavin Newsom has signed SB 778 into law, which clarifies certain aspects of California's new requirements that employers provide expanded training to employees to prevent sexual harassment. These requirements were enacted in 2018.

The new law also extends to Jan. 1, 2021, the deadline for most employers to train supervisors who were not already subject to training requirements and to provide training to nonsupervisory employees.  

The extension also means that supervisors who were trained in 2018 will not need to be retrained in 2019, as they arguably would have been under the initial Jan. 1, 2020, deadline. Further, it clarifies that the prior two-year training time frame will apply for both supervisory and nonsupervisory employees, meaning any employees trained in 2019 will also not need to be retrained until 2021—and then will only need to be trained every two years thereafter.

Background

In 2004, California enacted AB 1825 requiring employers with 50 or more employees to provide two hours of sexual-harassment-prevention training to supervisors every two years.

However, 2018's #MeToo movement suggested to lawmakers that the training requirements were too limited in several respects:

  • By applying the regulations to only larger employers, most employers were not required to provide any harassment training.
  • By limiting training only to supervisors, more-vulnerable employees were probably not getting information and resources they needed. 

Accordingly, the California Legislature unanimously enacted SB 1343, which took effect this year, to address these concerns by expanding the scope of harassment training. First, it required that by Jan. 1, 2020, employers with five or more employees provide at least two hours of sexual-harassment-prevention training to supervisory employees and one hour of training to nonsupervisory employees. 

SB 1343 also contained special training rules regarding seasonal, temporary and other employees hired to work for less than six months, requiring that beginning Jan. 1, 2020, these employees needed to be trained within the earlier of 30 calendar days of hire or within 100 hours worked. 

To help employers satisfy these new training obligations, SB 1343 directed the Department of Fair Employment and Housing (DFEH) to develop online training courses that employers could use for supervisory and nonsupervisory training. Employers could also develop and use their own training modules.

Confusion

As employers began preparing for these new training deadlines, several ambiguities emerged. First, it was not clear from the statutory language requiring essentially all employers to provide training by Jan. 1, 2020, whether supervisors trained in 2018 would need to be retrained in 2019. On one hand, such a requirement seemed at odds with the prior two-year training regimen utilized under AB 1825. On the other hand, the new statute's language requiring training by Jan. 1, 2020, seemed to compel such a result.

The DFEH issued FAQs in late 2018 that created additional concern by suggesting that employers would need to train all employees in 2019—even supervisors trained in 2018—to satisfy the statutory language requiring all employees be trained by Jan. 1, 2020.  

Second, while it was clear that supervisory employees needed to be trained within six months of hire or assuming a supervisory role, SB 1343 didn't specify when nonsupervisory employees must be trained.

Third, additional practical compliance challenges emerged when the DFEH announced that its promised training videos would not be available until late 2019, leaving many employers who had anticipated using them little time to either develop their own training modules or complete training by Jan. 1, 2020.

Accordingly, after consultation with employee and employer groups and human resource professionals, the California Senate Committee on Labor, Public Employment and Retirement introduced SB 778 to clean up and clarify these issues. The California Legislature subsequently unanimously passed and Newsom signed SB 778. The new law is immediately effective.

Clarifications

SB 778 makes three helpful clarifications to California's new sexual-harassment-prevention training requirements contained in Government Code Section 12950.1. 

First, it extends the deadline for most employers to comply with the new harassment training requirements from Jan. 1, 2020, to Jan. 1, 2021. This extension will provide additional time for those larger employers who previously trained their supervisors to train their nonsupervisory employees, and for smaller employers to train both their supervisory and nonsupervisory employees. 

It will also provide additional time after the DFEH training materials are published in late 2019 for employers to determine whether to use them or to develop their own training modules.

Second, the new Jan. 1, 2021, deadline removes the prior concern that supervisors trained in 2018 would need to be retrained in 2019 to meet the 2020 deadline. It also specifically provides that employers who conducted legally sufficient training in 2019 will not be required to provide further refresher training until two years thereafter. Further, it specifies that employers must provide this sexual-harassment-prevention training and education to each California employee once every two years.

It also specifies that nonsupervisory employees must be trained within six months of hire.

Temporary Workers

Employers should note that while SB 778 extended the initial training compliance deadline applicable to most employers, it did not affect the training requirements applicable to seasonal, temporary or other employees hired to work for less than six months, or to migrant and seasonal agricultural workers. 

While almost all employees in California will need to be trained in 2020 (unless trained in 2019) to meet the new Jan. 1, 2021, deadline, employers subject to these more industry-specific requirements may need to provide their training earlier in 2020 to meet the time frames applicable to them.

Michael S. Kalt is an attorney with Wilson Turner Kosmo in San Diego and the government affairs director for the California State Council of SHRM.

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