Sexual Harassment Training Regulations (11/26/07)

FAIR EMPLOYMENT AND HOUSING COMMISSION ISSUES SEXUAL HARASSMENT TRAINING REGULATIONS

By Anthony P. Raimondo

In 2004, the California Legislature passed AB 1825, which requires all employers with 50 or more employees (or employees and independent contractors) to provide a minimum of two hours of sexual harassment training to all supervisors. New regulations from the Fair Employment and Housing Commission (FEHC) clarify these obligations and fill in some of the specifics not addressed by the Legislature.

Who is a supervisor?

The regulations define who is a “supervisor,” which has been a matter of confusion for many California employers. As expected, the FEHC has adopted the definition from California’s Fair Employment and Housing Act (FEHA), which considers a “supervisor” to be anyone who has the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct their work or address their grievances, or the authority to effectively recommend such action, as long as the exercise of authority is not clerical or routine and involves the use of independent judgment.

Employers should err on the side of providing training, as the regulations state that receiving the training does not create an inference that an individual is a supervisor, or that an independent contractor is an employee. Employers should be able include independent contractors and their employees in the employer’s training without a presumption of employee or joint employer status.

Also, the regulations clarify that only supervisors located in California must be trained, as some ambiguity existed whether the training requirement applied to supervisors working in out of state operations.

Who is qualified to train?

The regulations also clarify the qualifications of trainers. Trainers must, through a combination of training and experience, have the ability to train supervisors about:

1. Unlawful harassment, discrimination and retaliation under state and federal law;

2. Steps to take when harassing behavior occurs in the workplace;

3. Reporting harassment complaints;

4. Responding to a harassment complaint;

5. The employer’s obligation to conduct a workplace investigation of a harassment complaint;

6. Retaliation and how to prevent it;

7. Essential components of an anti-harassment policy; and

8. The effect of harassment on harassed employees, co-workers, harassers, and employers.

The regulations specify that attorneys, professors or instructors, and Human Resource Professionals or Harassment Prevention Consultants are qualified to provide training as long as they have two years experience relevant to providing harassment training. For example, attorneys are qualified if they have been licensed to practice for two years and their practice includes employment law under the FEHA or Title VII (the federal anti-discrimination law). Qualified professor/instructor trainers are educators teaching in law schools, colleges, or universities on employment law under FEHA or Title VII. The final category is designed to qualify in-house human resources and equal employment opportunity staff in addition to professional trainers or compliance consultants. Such individuals must have at least two years practical experience in one or more of the following:

1. Designing or conducting discrimination and harassment prevention training;

2. Responding to harassment and/or discrimination complaints;

3. Investigating harassment/discrimination complaints; or

4. Advising employers or employees regarding prevention of harassment, discrimination, and retaliation.

Individuals without the required experience are permitted to team with a qualified trainer, as long as the qualified trainer is available throughout the training for questions.

What types of training are acceptable?

The regulations also explain that there are three acceptable forms of training:

1. Classroom – In person instruction with content created and provided by a trainer. Supervisors must be removed from daily duties during such training;

2. On-line, computer based (“e-learning”) training – Individualized, interactive, computer based training created by a trainer and an instructional designer. Such training must have a link or directions providing contact to a live trainer who will answer questions within two business days; and

3. Web-based live seminars (“Webinars”) – An Internet based seminar with content created and delivered by a trainer and transmitted in real time over the Internet. Each supervisor must attend the entire training, must actively participate in the interactive content, and must be able to ask questions of the trainer.

Employers are responsible for providing documentation that the training was actually attended by supervisors, and the training must last for two hours.

Training schedule

Under the law, supervisors must receive training every two years. The regulations explain that employers can use an individual year, or a “training year” to track the training. An individual year means that each individual supervisor receives the training within two years of the date his or her last training. For example, a supervisor trained on November 30, 2007 must be trained on or before November 29, 2009. A training year means that training can be tracked by calendar year. For example, an employer can designate that all supervisors trained in 2007 must be retrained in 2009.

Prior training

If an employer is satisfied that training from another employer in the last two years is in compliance, then retraining is not required. The new supervisor must still read and acknowledge receipt of the new employer’s anti-harassment policy within 6 months, and must be put on a two year schedule based on the date of the training from the prior employer. The current employer will have responsibility for providing documentation of the prior training, and of showing that it satisfied the requirements of the law.

Training content

Required content includes:

1. The definition of sexual harassment under state and federal law;

2. FEHA and Title VII statutory provisions and case law explaining the prohibition and prevention of harassment, discrimination, and retaliation;

3. The types of conduct that constitute sexual harassment;

4. Remedies for sexual harassment;

5. Strategies to prevent harassment;

6. Practical examples from case law, media accounts, and hypotheticals and role plays, case studies, or group discussions;

7. Limited confidentiality in the complaint process;

8. Resources for victims of harassment, such as how and to whom they should report complaints;

9. The employer’s obligation to conduct an effective investigation;

10. What to do if you are accused of harassment; and

11. Essential elements of an anti-harassment policy and how to use it when a complaint is filed. At or immediately after the training, the employer must provide a copy of its policy and require the supervisor to read it and acknowledge receipt.

Documentation

Employers must document the training, including the supervisor’s name, the date of the training, the type of the training, and the name of the training provider. Records must be retained for at least two years. Employers should require supervisors to sign a certification that they attended the training for the entire two hours, understood the content, and had all of his or her questions answered by the trainer.

COUNSEL TO MANAGEMENT:

The mandatory training for supervisors is only one small component of an effective policy against harassment. All employers with 5 or more employees are required to have a policy against harassment and must train employees on the policy and the complaint procedure. For practical purposes, even employers with fewer than 50 employees should provide the mandatory training for supervisors in addition to training for all employees, and careful documentation should be maintained. Although the regulations only require record to be kept for 2 years, employers should maintain training records as a permanent part of the personnel file just in case they face litigation and need to show all that they have done to prevent harassment.

The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Saqui & Raimondo at (831) 443-7100 in Salinas, or (916) 782-8555 in Sacramento for individual responses to questions or concerns regarding any given situation.