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©2007 The Ison Law Group

 

FEHC APPROVES ANTI-SEXUAL HARASSMENT TRAINING REGULATIONS

The California Legislature made national headlines back in 2004 when it passed Assembly Bill (AB) 1825, which mandates sexual harassment training for all supervisory employees.  Since that time, the Fair Employment and Housing Commission (“FEHC”) has issued several versions of its proposed regulations implementing AB 1825, using recommendations taken during public hearings to refine and clarify the substance of its sexual harassment prevention training requirements.  On repeated occasions, the FEHC’s proposed regulations failed to gain approval from the Office of Administrative Law (“OAL”), primarily due to technical flaws and a lack of clarity, as well as a vigorous debate over the provisions outlining who is qualified to prepare and conduct anti-harassment training under the statute.

On July 18, 2007, the Office of Administrative Law (“OAL”) approved the final version of the FEHC regulations implementing AB 1825.  The final regulations, entitled “Sexual Harassment Training and Education,” will become effective on August 17, 2007, and are available for download at http://www.fehc.ca.gov.  Some highlights of the final regulations include the following:

The Basics

AB 1825 applies to all companies that regularly employ fifty (50) or more employees or “receive the services” of 50 or more persons.  This means that an employer utilizing independent contractors or temporary workers must include these persons in making the determination whether the employer is obligated to provide AB 1825 training.   There is no requirement that the fifty (50) employees or contractors work at the same location, or that all work or reside in California.  Out-of-state employees must be included in determining the application of AB 1825, but the employer is not obligated to provide training to out-of-state employees.  As a practical matter, however, a company that is required to establish a sexual harassment prevention training policy for its supervisory employees in California may conclude that such training is beneficial for out-of-state supervisors as well.  If you are unsure whether your company is covered by AB 1825, you should consult with an experienced employment law attorney to develop your company’s policy.

AB 1825 mandates that employers complete their first round of supervisory training on or before January 1, 2006.  Thereafter, employers must provide two (2) hours of sexual harassment prevention training to each supervisory employee every two years.  New supervisory employees must be trained within six (6) months of accepting a supervisory position, and every two (2) years thereafter.  However, a newly hired supervisor can “carry over” training from a previous employer and need only receive and acknowledge a copy of the new employer’s anti-harassment policy within six (6) months of arriving at the new job.

The final AB 1825 regulations allow employers to track compliance individually or by “training year.” Under the “training year” method, an employer may designate a “training year” in which it trains all supervisory employees and thereafter retrains them by the end of the next training year (e.g., all supervisors trained in training year 2005 are trained again in 2007).  Employers must keep documentation of all sexual harassment prevention training, including the name of the supervisory employee trained, the date of training, the type of training, and the name of the qualified trainer.  The documentation must be kept as a business record for a minimum of two (2) years.  Remedies for failure to comply with this record-keeping requirement may include an administrative order from the FEHC finding that the employer is out of compliance, and demanding compliance within sixty (60) days.

Qualified Trainers

AB 1825 provides that prevention training must be taught by qualified “trainers or educators.”  Those qualified to conduct AB 1825 training include any attorney with a minimum of two (2) years of experience and a practice specialty in employment law.  AB 1825 training may also be conducted by certain educators with post-graduate degrees or teaching credentials and experience teaching college-level (or higher) employment law courses.  Human resources professionals or “harassment prevention consultants” are qualified as trainers if they have at least two (2) years of practical experience designing or conducting discrimination and harassment prevention training, responding to sexual harassment or discrimination complaints, investigating claims, or advising companies or employees about prevention issues.  Prior to hiring an AB 1825 trainer, a contracting employer should always obtain written verification that the proposed trainer meets the education and/or experience requirements set forth at Section 7288(a)(9) of the FEHC regulations.

Training Content

AB 1825 mandates that sexual harassment prevention training must be of a high quality, conducted via “classroom or other effective interactive training.”  The training must include information and practical guidance regarding federal and state statutory laws prohibiting sexual harassment, the correction of sexual harassment and the remedies available to victims, and illustrations aimed at instructing supervisors in the prevention of sexual harassment, discrimination, and retaliation.  The FEHC final regulations contain a list of mandatory topics for AB 1825 training:

  • A definition of unlawful sexual harassment under both the California Fair Employment and Housing Act (“FEHA”) and Title VII of the federal Civil Rights Act of 1964 (“Title VII”).
  • A summary of FEHA and Title VII statutory provisions and case law principles that prohibit sexual harassment, discrimination and retaliation in the workplace, including the employer’s affirmative obligation to identify and prevent such unlawful conduct.
  • The types of conduct that constitutes sexual harassment.
  • Remedies available for sexual harassment.
  • Strategies to prevent sexual harassment in the workplace.
  • “Practical examples,” such as fact patterns taken from case law, news and media accounts, hypotheticals based on workplace situations and other sources which illustrate sexual harassment, discrimination and retaliation using training techniques such as role playing, case studies and group discussions.
  • The limited confidentiality of the complaint process.
  • Resources for victims of unlawful sexual harassment, such as to whom within the change of command they can/should report any alleged sexual harassment.
  • The employer’s obligation to conduct an effective workplace investigation of any and all harassment complaints.
  • Training on what to do if the supervisor is personally accused of harassment.
  • The essential elements of an anti-harassment policy and how to utilize it if a harassment complaint is filed.  

Regardless of whether the employer’s own employee handbook or discrimination policies are used in the training, AB 1825 also requires that the employer provide a copy of its anti-harassment policy to each supervisor, and that each supervisor acknowledge receipt and understanding of the policy.

Types of Training

The “effective interactive training” contemplated by AB 1825 can take one of several forms.  In addition to traditional classroom training, which consists of in-person instruction, with content created by a trainer in a setting removed from the supervisor’s daily duties, AB 1825 also authorizes:

E-Learning.  Employers may satisfy the requirements of AB 1825 by providing individualized, interactive, computer-based training created by a qualified trainer and an instructional designer.  The e-learning training must provide a link or directions on how to contact a trainer who must be available to answer questions and to provide guidance and assistance about the training within a “reasonable” period of time (no more than two business days). 

Webinar.  AB 1825 also specifically authorizes “webinar” training – defined as an internet-based seminar with content created and taught by a qualified trainer and transmitted over the internet or intranet in real time.  The webinar must provide the supervisors an opportunity to ask questions, to have them answered and otherwise to seek guidance and assistance.  If an employer elects to use webinar training, it must maintain documentation to establish that each supervisor who was not physically present in the same room as the trainer actually attended the webinar training and actively participated with the training’s interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities.  

Regardless of the type of training utilized, AB 1825 also requires that the training program 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.

Good Faith Compliance

For employers who began their AB 1825 compliance programs before the OAL adopted these final regulations, there is one more important note:

An employer who has made a substantial, good faith effort to comply with [AB 1825] by completing training of its supervisors prior to the effective date of these regulations shall be deemed to be in compliance with [AB 1825] regarding training as though it had been done under these regulations.

If you are unsure whether the AB 1825 compliance program adopted by your company complies with the new FEHC regulations, you should make every effort to complete your AB 1825 training before August 17, 2007.   Any training program completed before August 17th that makes a substantial, good faith effort to train supervisors on prevention of sexual harassment in the workplace will be deemed compliant and not subject to the new FEHC regulations.  Beginning August 17th, all companies should review their AB 1825 policies with employment law counsel or experienced Human Resources professionals to ensure compliance with the FEHC regulations on a go-forward basis.

 

©2007 THE ISON LAW GROUP