Sexual Harassment
Training - FEHC Regulations are Almost Here
There
are many compelling reasons to implement sexual harassment training at the
workplace:
- Promote a better
work environment through awareness;
- Reduce claims by
educating employees in permissible conduct; and
- In the event of a
litigated claim, limit or avoid damages by showing effective sexual
harassment policies and communication of those policies to employees.
(See,
e.g., State Dept of Health Services v. Sup. Court (2003) 31 Cal.4th
1026; White v. Ultramar, Inc., (1999) 21 Cal.4th 563, citing Kolstad v. American Dental Assn. (1999)
527 U.S.
526.)
Not
to mention, it is the law! Every employer certainly became aware in 2006
that pursuant to AB 1825 (California Government Code § 12950.1), sexual
harassment training became mandatory for employers having 50 or more
employees. Specifically, it provides:
By
January 1, 2006, an employer having 50 or more employees shall provide at
least two hours of classroom or other effective interactive training and
education regarding sexual harassment to all supervisory employees in California who are
employed as of July 1, 2005, and to all new
supervisory employees within six months of their assumption of a
supervisory position. Any employer who has provided this training and
education to a supervisory employee after January 1, 2003, is not required
to provide training and education by January 1, 2006, deadline. After
January 1, 2006, each employer covered by this section shall provide sexual
harassment training and education to each supervisory employee in California once
every two years. . . .
Although
the statute made clear that training was required, it failed to provide
detail on many salient issues, including what type of training would
qualify as compliant training. Regulations that will provide further
clarification, however, are not far away – or at least that is what we have
been told. The Fair Employment and Housing Commission (FEHC) has adopted Sexual Harassment Training Regulations,
currently before the Offices of Administrative Law (OAL) for review and
final approval. Assuming approval occurs; the FEHC indicates that these
regulations will go in effect approximately February 14, 2007.
What
are some of the highlights? First, it clarifies that the requirement of
"having 50 or more employees" means employing or engaging 50 or
more employees or contractors for each working day in any 20 consecutive
weeks in the current calendar year or preceding calendar year. Employers
whose personnel numbers hover at the near 50 level now can more accurately
determine whether they must comply. Obviously, this may draw in some
employers and eliminate others.
Second,
it clarifies that to be a "supervisor" subject to this training
requirement, you must be located in California
(not the entire Company, just the supervisor). Supervisor is further
clarified by adopting the definition in Government Code § 12926(r) which
includes "any individuals 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.
Third,
the regulation provides that the training can occur in any of the following
formats:
- Classroom
training;
- Webinar training; or
- E-learning
program.
While
classroom training needs little explanation, the other options are
certainly welcome alternatives. "E-learning" programs are defined
as
"[I]ndividualized,
interactive, computer-based training whose content is written developed and
approved by an instructional designer(s), qualified trainer(s) or subject
matter expert(s). An e-learning program shall provide a link or directions
on how to contact directly trainers or educators, either working for the
employer or retained by the e-learning provider. These trainers or
educators shall be available to answer questions and to provide guidance
and assistance on harassment training issues within a reasonable period of
time after the supervisor asks the question, but no more than two business
days after the question is asked.
The
other option, a "Webinar," is defined
as
[A]n internet-based seminar created
and taught by a qualified trainer and transmitted over the internet or
intranet in real time. An employer utilizing a webinar
for its supervisors must document and demonstrate that each supervisor who
was not physically present in the same room as the trainer nonetheless
attended the entire training and actively participated with the training's
interactive content, discussion questions, hypothetical scenarios, quizzes
or tests, and activities. The webinar must
provide the supervisors an opportunity to ask questions, to have them
answered and otherwise to seek guidance and assistance.
The
statute further explains that the two-year training requirement can be
tracked at the individual level, by requiring an individual to take further
training within 2 years of his/her last training session. Alternatively,
the "training year" approach can be adopted whereby all
supervisors must be trained within a designated year and then again two
years later and so on.
New
businesses and existing businesses that expand to 50 employees must provide
training to supervisors within six months and thereafter biennially.
The
regulations further provide detail regarding what constitutes a complete
curriculum and who is qualified to providing training under these
regulations.
The
changes answer many questions and are a welcome clarification to the
rudimentary mandate of AB 1825. But don't forget – they are not expected
to go into effect until approximately February 14, 2007, assuming they
are approved.
Irrespective
of AB 1825 and the impending regulations, continuing training on sexual
harassment issues should be a priority for all employers. The benefits
simply outweigh any cost associated with a training policy.
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