Proposed Regulations
for California's
Mandatory Sexual Harassment Training
On
December 16, 2005, the California Fair Employment and Housing Commission
(FEHC) issued proposed regulations regarding compliance with California's
mandatory sexual harassment training requirement.
The
proposed regulations interpret key terms and concepts in Government Code
section 12950.1. This statute requires California employers with more than
fifty (50) employees to provide supervisors with two hours of sexual
harassment training every two years. The first compliance deadline for the
law was January 1, 2006.
The
proposed regulations provide flexibility to employers in some areas, such
as training methods. However, some areas are liberally construed in favor
of employees – such as including the maximum number of employers who must
provide training.
The
proposed regulations are open for public comment and may change before
their final adoption. Once finalized, the regulations will be codified at
California Code of Regulations Section 7288.0. The full text of the
regulations can be found at the FEHC website at http://www.fehc.ca.gov/.
The
following are some of the key interpretations in the proposed regulations.
Who Is Covered by the Training Requirement?
The
law requires California
employers with more than 50 employees to provide mandatory training to
supervisors. The proposed regulations liberally construe which employers
are required to provide training.
First,
the proposed regulations make clear that the training requirement applies
to all employers who do business in California
and have 50 or more employees anywhere. There is no requirement that the 50
employees work at the same location or all reside in California. The business could have
three California employees and 47
employees in Iowa
and be covered by the law. Only some of the employees have to work in California.
In
counting employees for the requirement, employers have to include
full-time, part-time, temporary, and contract workers.
In
addition, employers doing business in California
are required to train any person who supervises a California employee – even if the
supervisor is located out-of-state. The FEHC states that the proposed
definition includes out-of-state supervisors who supervise California employees because the intent of the Fair
Employment and Housing Act (FEHA) is to protect California employees from harassment.
Importantly,
the mere fact that an employer provides the harassment training to an
employee will not, according to the proposed regulations, create an
inference that the employee is a supervisor. Rationally, the Commission
noted that it did not want to discourage employers from offering the
training to all personnel - - supervisory and non-supervisory.
What Type of Training Is Allowed?
The
proposed regulations specifically allow for three types of training-
-classroom training, e-learning and webinars.
Classroom
training is defined as "in-person, instructor-led instruction, created
by a qualified instructional designer and provided to a supervisor by a
qualified trainer, in a setting removed from the supervisor's usual work
environment." E-learning is defined as "individualized,
computer-based training created by a qualified instructional
designer." "Webinar" is a
web-based seminar created by a qualified instructional designer and taught
by a qualified trainer.
Under
the proposed regulations, however, all types of training must
provide an opportunity for interaction and feedback.
The
phrase "other interactive training and education" under the
statute is defined by the proposed regulations to include non-classroom
instruction using audio, video, or computer technology with an opportunity
for feedback, the opportunity to ask questions and have them answered, and
testing that measures progress and acquisition of knowledge. E-training and
webinars shall incorporate feedback or a
participation component at least every 15 minutes, so that employees are
measurably engaged in the training."
What are the Content and Length Requirements?
The
proposed regulations discuss the specific content that the training must
cover:
- The definition of
unlawful harassment under FEHA and Title VII. In addition to the
definition of sexual harassment, an employer may discuss other
forms of harassment prohibited by FEHA.
- FEHA and Title VII
statutory provisions and case law concerning the prohibition against
and prevention of unlawful harassment in employment.
- The types of
conduct that constitutes harassment.
- Remedies available
for harassment.
- Strategies to prevent
harassment in the workplace.
- Practical
examples, involving, for example, role plays, case studies, group
discussions and examples with which the employees will be able to
identify and apply in their employment setting.
- The
confidentiality of the complaint process.
- Resources for
victims of unlawful harassment, such as whom they should report to.
- How to investigate
a harassment complaint.
- What to do if the
supervisor is personally accused of harassment.
- The employer's anti-harassment
policy and how to use it if a complaint is filed.
Under
the statute, the training must be two hours. The proposed regulations state
that the training need not be completed in two consecutive hours. For
classroom training or webinars, the minimum
duration of a training segment is no less than half an hour. For
e-training, the minimum training segment is fifteen minutes.
In
addition, e-learning need only contain enough content to cover two hours.
There is no requirement that a person using e-learning sit in front of the
computer for two hours if the person learns the material rapidly and
finishes early.
Who Can Train?
The
proposed regulations discuss in detail the qualifications and qualities
needed in trainers. The proposed regulations state that trainers and
educators may include, California
licensed attorneys, human resource professionals, psychologists, or others
provided that they have "legal education or practical
experience."
Examples
of desirable qualities in a trainer include a person who uses various
training methodologies, can facilitate small and large group discussion, is
an effective listener, is credible, has a positive professional reputation,
and continues to learn about gender and cultural issues and concerns.
Examples
of undesirable qualities include a person who is, or has the reputation of
being, a "hugger", sexual, flirtatious, aggressive, arrogant,
abusive, demeaning to women or men, telling offensive jokes, or using
sexual, racial, religious, sexual orientation or other protected bases
stereotypes or derogatory language.
Under
the proposed regulations, trainers or educators must be qualified to train
about what is harassment, how to intervene when harassing behavior occurs,
how to report, respond to, and investigate harassment complaints, the
illegality of retaliation, and the employer's policies.
Statutory Compliance
As
noted, Government Code section 12950.1 states that employers must provide
the training to supervisory employees (who were employed as of July 1,
2005) by January 1, 2006 – long before the final regulations will be in
place. Giving employers some flexibility, the FEHC's
proposed regulations state that an employer who prior to the effective date
of the regulations "has made a substantial, good faith effort"
to comply with the statute shall be deemed to have complied.
What Should Employers Do?
- Review the
proposed regulations for guidance regarding your training program.
- Comply with
statutory deadlines for training supervisory employees.
- Create a tracking
program to keep account of which supervisors have completed training
and when. Keep accurate records on file.
Elizabeth
R. Ison is a principal with The Ison Law Group, a law firm specializing in
all aspects of workplace law. Among other specialties, Ms. Ison conducts
neutral workplace investigations and acts as an expert witness with respect
to human resource compliance issues.
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