Summary:
All California employers, which employ 5 or more employees, must provide sexual harassment training to all employees every two years. SB 1343, which was approved in 2018, requires any employer with at least 5 employees to provide the sexual harassment training to all employees (previously training was only required for employers with >50 employees and for supervisors). SB 778, which was approved on August 30, 2019, and SB 530, which was approved on October 10, 2019, clarified/amended certain deadlines.
Are there any relevant California laws I should know about?
AB 1825 which added Section 12950.1 to the California Government Code (Fair Employment and Housing Act) and relevant amendments to the Code (AB 2053, SB 396, SB 1343, SB 778, SB 530)1 as well as 2 CCR § 11024 and SB 1300. (10)
What companies must provide training?
All California employers which employ 5 or more employees. (2)
Who must be trained?
All employees must be trained. (3) Supervisory (4) employees must be trained for at least 2 hours and non-supervisory employees must be trained for at least 1 hour.
How frequently must employees be trained?
All employees must be trained once every 2 years.
When must employees be trained?
Nonsupervisory employees and supervisory employees need to be trained within 6 months of hire/assumption of supervisory role. (5) Temporary workers (6) must be trained within 30 days of initial hire or within 100 hours worked, whichever comes first (effective January 1, 2021). All employees must be trained by January 1st, 2021. (9)
What are the minimum training requirements?
- All employees must be provided with classroom (7) or other effective interactive training and education regarding sexual harassment and the prevention and correction of sexual harassment and remedies available to victims of sexual harassment.
- The training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
- Training must be at least two hours for supervisors and at least one hour for nonsupervisory employees.
- The department shall provide a method for employees who have completed the training to save electronically and print a certificate of completion.
- The training must include, but is not limited to:
- The definition of sexual harassment provided by FEHA and the Civil Rights act of 1964
- FEHA and Title VII statutory provisions and case law principles concerning the prohibition against and the prevention of unlawful harassment, discrimination and retaliation in employment.
- The types of conduct that constitute sexual harassment
- Remedies available for sexual harassment victims
- Strategies to prevent sexual harassment
- Supervisors’ obligations to report sexual harassment, discrimination, and retaliation that they are aware of
- Practical examples that illustrate sexual harassment, discrimination, and retaliation in the workplace
- The limited confidentiality of the complaint process
- Resources available to sexual harassment victims and who they should talk to
- Steps to take to remediate harassing behavior
- Training on what to do when the harasser is the supervisor
- The essential elements of an anti-harassment policy
- A review of the definition of “abusive conduct” and its negative effects on the victim and the workplace. The detrimental consequences, such as productivity and morale, of abusive conduct on an employer. The elements of abusive conduct. Examples of abusive conduct. That a single act does not constitute abusive conduct, unless especially egregious
- Protection against retaliation in employment for filing a complaint or participating in investigations relating to sexual harassment in the workplace
- “An employer may also provide bystander intervention training” (8)
- E-Learning must:
- Be individualized, interactive, created by a trainer and an instructional designer
- Provide a link or directions on how to contact a trainer who shall be available to answer questions
- Include questions that assess learning, skill-building activities that assess the supervisor’s application and understanding of content learned, and numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain engaged in the training. Examples include pre- or post-training quizzes or tests, small group discussion questions, discussion questions that accompany hypothetical fact scenarios, use of brief scenarios discussed in small groups or by the entire group, or any other learning activity geared towards ensuring interactive participation as well as the ability to apply what is learned to the supervisor’s work environment
- AB 1825, which was approved on September 29, 2004, added Section 12950.1 to the California Government Code laying out the requirement for sexual harassment training; AB 2053, which was approved on September 9, 2014, added prevention of abusive conduct to sexual harassment training requirements; SB 396, which was approved on October 15, 2017, added gender identity, gender expression, and sexual orientation to sexual harassment training requirements; SB 1343, was approved on September 30, 2018, extended harassment training requirements to all employees, not just supervisors, and reducing employee number thresholds to 5 employees, including temporary or seasonal employees; SB 778, which was approved August 30, 2019, extended the employee training deadline and resolved confusion about retraining requirements for certain employees who already received training in 2018 or 2019. SB 530, which was approved October 10, 2019, extended the effective date for temporary workers’ training requirements as well as made some specific provisions for employers that employ workers pursuant to a multiemployer collective bargaining agreement in the construction industry (more information on the impact of SB 778 and SB 530 can be found HERE). Section 12950.1 of the California Government Code is the Fair Employment and Housing Act (FEHA),Title 2, Division 3, Part 2.8. The Department of Fair Employment and Housing (DFEH) is the state agency charged with enforcing and interpreting California’s civil rights law and has issued regulations governing the sexual harassment trainings contained within 2 CCR § 11024. The DFEH has published a Sexual Harassment Frequently Asked Questions.
- “Employees” includes temporary or seasonal workers, contractors, and interns. There is no requirement that these employees be employed at the same time during the year.
- All employees residing or working in California must be trained in accordance with these requirements. It is not entirely clear to Kantola if an individual trained by another California employery requires to be retrained when starting with a new employer (piggy-backing)
- “Supervisory employee” means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
- A non-supervisory employee promoted to a supervisory role must be retrained in accordance to supervisory training requirements within 6 months of assuming the supervisory role.
- Temporary workers includes temporary, migrant or seasonal (or working less than 6 months, i.e. interns) workers
- In-person/classroom training must be administered by a “Qualified Trainer” as outlined in California Code Regs. tit. 2, § 11024(a)(10) which includes the following requirements: A trainer also shall be one or more of the following: (1) “Attorneys” admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or “Human resource professionals,” “harassment prevention consultants,” or peer-to-peer trainers with a minimum of two years of practical experience in one or more of the following: a) designing or conducting discrimination, retaliation and harassment prevention training; b) responding to harassment complaints or other discrimination complaints; c) conducting investigations of harassment complaints; or d) advising employers or employees regarding discrimination, retaliation and harassment prevention, or “Professors or instructors” in law schools, colleges or universities who have either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.
- Section 12950.2 of the California Government Code states that “An employer may also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
- SB 778, which was approved August 30, 2019, extended the employee training deadline and resolved confusion about retraining requirements for certain employees who already received training in 2018 or 2019.
- The California legislature, through SB 1300, made clear that California law does not preclude a harassment complaint based on a single alleged incident of misconduct from going to trial, and they clarified that a single stray comment can be evidence of a hostile work environment. In particular, the California legislature rejected the case of Brooks v. City of San Mateo (2000) 229 F.3d 917 as a test of whether a single incident of harassing conduct is sufficiently severe or pervasive to constitute hostile work environment harassment. At the same time, however, the legislature did not eliminate the “severe or pervasive” standard in California. For this reason, our courses make clear that in most cases isolated comments or incidents are not going to lead to liability for workplace harassment, which remains true after SB 1300. We have found that most of our customers want their employees to understand this, while also understanding that employers must take effective steps to stop sexually inappropriate conduct in the workplace.
