Sexual Harassment Training is Mandatory for California Employers

New for 2005 is a law, codified at California Government Code section 12950.1, which mandates employers  train and educate supervisors on sexual harassment every two years. While this new law may require some employers to incur additional expenses to train supervisory employees, the law is designed to decrease the number of sexual harassment claims filed against employers. If successful, the program may ultimately result in a savings to California employers by decreasing liability claims and slowing future insurance increases. As we embark on the new year, it is imperative that employers understand their obligations under this law and immediately commence development of a training program in accordance with these new requirements.

The Specifics – Which Employers Must Train, How Often,

And Which Employees Must Receive Training 

The new law only applies to employers that regularly employ fifty (50) or more employees or regularly accept the services of fifty or more people pursuant to a contract.  The new law does not make a distinction between full-time employees, independent contractors, part-time employees, or temporary employees in calculating whether an employer qualifies under this law.  Furthermore, though the statute does not specify whether employees located outside of California are to be included in the calculation, courts have found that the Fair Employment and Housing Act ("FEHA") minimum employee provisions solely include employees working in California.

Employers covered under the new law must provide two hours of sexual harassment training to all supervisors employed as of July 1, 2005.  Employers that provided sexual harassment training to their supervisory employees in or after 2003 will not have to comply with the initial training requirements.  However, commencing January 1, 2006, covered employers must provide sexual harassment training to each supervisor once every two years.  Should an employer hire a new supervisor or promote an employee to a supervisory position, that employee must receive sexual harassment training and education within six (6) months of obtaining such position. 

Though the statute does not specifically define "supervisor," it may be presumed that FEHA's definition of "supervisor" applies.  A "supervisor" is any employee having the authority "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 the exercise of that authority is not of a merely routine or clerical nature but requires the use of independent judgment."  See Cal. Gov't Code § 12926(r).  Consequently, directors and high level executives are also covered under this law. 

What Must The Training Encompass And Who Should Conduct The Training

The new law is directed at providing supervisors with quality sexual harassment training and education through "classroom or other effective interactive training" and must include:

Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention of sexual harassment;

Information about the correction of sexual harassment and the remedies available to victims of sexual harassment; and

Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation.

The topics listed above are considered the floor and not the ceiling under the new statute.  Consequently, this law should not "discourage or relieve an employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment of other forms of unlawful discrimination."  It is prudent for covered employers to incorporate training and education on all categories of unlawful harassment or discrimination, including, but not limited to age, religion, disability, national origin, and race.

The law requires employers to provide supervisory employees with "effective interactive training."  The law does not provide covered employers with any guidance on this issue, but it is safe to presume that simply reading an employee handbook on sexual harassment, watching a video, or reviewing an internet program is not sufficient.  Training and education pursuant to the new statute should include interaction such as role playing, group discussions, and/or question and answer time.

The new law requires the training and education be conducted by "trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation."  Again, the law does not guide covered employers on the expertise or knowledge necessary to be in compliance with this law.  Consequently, it is vital that employers utilize the services of trainers that understand California's complex harassment and discrimination laws.

Checklist For Covered Employers To Comply With The New Law

Though employers have until January 1, 2006 to comply with the new law, it is recommended that covered employers commence with the following immediately:

Identify all employees who will need to undergo sexual harassment training and education. Remember, supervisory employees trained in 2003 and 2004 with programs that meet the minimum requirements of the new law need not be retrained in 2005.

Research training options and select a qualified trainer.  Covered employers must ensure that the minimum quality standards in the new law are met.  Burnham Brown's employment law attorneys are experienced trainers and available to assist. 

Establish the protocol of the training program, specifically the topics and timing of such training and education.  Employers may wish to lengthen the training time to cover harassment and discrimination training on other protected categories such as age, religion, disability, national origin, and race.

Create a training schedule that the company will use well into the future.  For example, a company may want to utilize a once a year or every other year program wherein all supervisory employees are mandated to attend.  Remember, newly hired or promoted supervisors must receive sexual harassment training and education within six months of obtaining such position.

Develop a tracking system that identifies supervisory employees that have completed the training.  An employer may wish to use a sign in sheet or acknowledgment form that is signed by the employees in attendance.  Employers must retain these records though there is no need to submit such records to the State. Compliance with the new law does not insulate an employer from liability, but it may assist in defending any harassment claims that may arise later.

Update company policies to include mandatory sexual harassment and education for all supervisory employees.  Remember that the new law may be applicable to directors and high level executives.  Communicate this new requirement to all management in California locations.

Cathy Arias is the chair of Burnham Brown's Employment Law Department and specializes in counseling and defending employers. She can be reached at 510.835.6806 or carias@burnhambrown.com