Calif. Employers: Prepare for New Anti-Harassment Training Mandate

Most employers granted a one-year reprieve on mandatory training deadline

By Holly Sutton and Mary Fong October 3, 2019
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​Human resource professionals who are scrambling to comply with the new California sexual-harassment-prevention training requirements have another year to put those plans in place for most workers. Here's what they need to know about the new mandate.

Updated Training Deadlines

Under a law that took effect in 2018, California employers with five or more employees are required to provide sexual-harassment-prevention training every two years to all employees, including one hour of training to nonsupervisors and two hours of training to supervisors.

Full-time, part-time and temporary employees are included in the employer's head count, whether they work at the same location or work or reside elsewhere in California. The employer is responsible for the training costs. Employers cannot require employees to complete the training during personal time, so workers must be paid for attending.

The initial training deadline was Jan. 1, 2020, but employers now have until Jan. 1, 2021, under SB 778, which Gov. Gavin Newsom recently signed into law.

Starting Jan. 1, 2021, new employees must be trained within six months of their hire date, and newly promoted supervisors must be trained within six months of their promotion.

The new law clarifies that supervisors and nonsupervisors trained in 2019 need not be retrained until 2021. If employees are not trained by Jan. 1, 2021, an employer could be investigated by the Department of Fair Employment and Housing (DFEH), and a court could order the employer to comply.

Despite the extended training deadline for most employees, HR professionals should note that seasonal and temporary employees—including those hired to work for less than six months—must be trained within 30 calendar days of hire or 100 hours worked, whichever occurs first, beginning Jan. 1, 2020.

A staffing agency that employs temporary workers for third-party clients must train those employees rather than rely on the client to do so.

[SHRM members-only HR Q&A: What are the different types of sexual harassment?]

Specific Requirements

Employers must keep training documentation for at least two years, and the documentation must include the names of the attendees who were trained, the training date, a sign-in sheet, a copy of all attendance or completion certificates issued, a description of the type of training provided, a copy of any written or recorded training materials, and the trainer's name.

The training can be conducted live or online and combined with other trainings. Many employers find that in-person training is more effective, particularly because it can be tailored to the employer's workforce. Often, employers alternate between live and online training programs. Either way, sexual-harassment-prevention training must be interactive, which may include classroom learning; computer-based e-learning; webinars; or other audio, video or computer training, including a combination of different training types.

To ensure adequate participation and sufficient understanding, the training should include discussion questions, hypothetical examples and quizzes. E-learning or webinar training must include an opportunity for attendees to ask questions or seek further guidance, and the trainer or employer must retain all written questions received and the replies for two years.

The training must be conducted by an attorney or other qualified trainer who is knowledgeable about harassment, discrimination and retaliation prevention.

The training goals are to help employers change workplace behaviors that cause or contribute to sexual harassment, educate attendees on the negative impact of abusive conduct, and help supervisors prevent and address harassing conduct.

Consistent with those goals, the training must explain the following:

  • The definitions of unlawful harassment under the California Fair Employment and Housing Act and Title VII of the Civil Rights Act of 1964.
  • Federal and state statutes and case law principles.
  • Types of harassing conduct.
  • Available remedies to victims and potential employer and individual liability.
  • Workplace strategies to prevent harassment.
  • Supervisors' duty to promptly report any harassment, discrimination and retaliation.
  • Limits on confidentiality in the complaint and investigation processes.
  • Resources for harassment victims, including an explanation of how to make complaints.
  • Appropriate steps to take to remedy harassment, including the employer's responsibility to conduct an effective workplace investigation after receiving a harassment complaint.
  • What to do when someone accuses a supervisor of harassment.
  • The essential elements of an anti-harassment policy and the policy's application to a filed complaint.
  • The definition of abusive conduct under the California Government Code 12950.1(i)(2), including such conduct's negative effects and consequences on victims and others in the workplace.

The DFEH has created some basic training slides and anticipates providing online training courses by late 2019.

Before investing employee time and resources into a training program, employers are encouraged to consult with their employment counsel to ensure their proposed program is compliant.

Holly Sutton and Mary Fong are attorneys with Farella Braun + Martel in San Francisco.

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