New Regulations Clarify California Employer's Obligations to Train their Supervisors in the Prevention of Sexual Harassment and Discrimination

In November 2006, the California Fair Employment and Housing Commission (FEHC) adopted regulations clarifying California employers' obligations to provide sexual harassment prevention training for supervisors.  These rules are expected to become effective in February 2007 following the submission to the Secretary of State.  Once again, it is essential that employers understand these new regulations and implement them immediately in order to be in compliance with California law.

Summary of California Government Code section 12950.1 Which Requires Training On The Prevention of Sexual Harassment

In 2004, the Legislature passed AB 1825 which required California employers who regularly employ fifty or more employees (full-time, independent contractors, part-time employees, or temporary employees) to provide two hours of sexual harassment training to their supervisors.  The employers must ensure their supervisors are trained every two years or within six months of obtaining a supervisory position.  Though not expressly set forth in AB 1825, it is safe to presume that a supervisor is one that has 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 to recommend that action…if the exercise of that authority is not merely of or clerical nature but requires independent judgment."  See Cal. Gov't. Code § 12926(r).

New Regulations Which Are Designed To Give Guidance To California Employers

 The new regulations approved by the FEHC are considered long-awaited clarification of the sexual harassment training legislation which left many employers surmising how to be in compliance with the law.  The new regulations, in pertinent part, set forth the following:

Employers now have two options for ensuring their employees are trained every two years: 1) An employer may track its training for each supervisor by measuring two years from the date of the individual supervisor's training or 2) an employer can designate a "training year" by which the employer trains some or all of its supervisors and then retrains them by the end of the next "training year" two years later.

• The sexual harassment prevention training must be conducted by qualified personnel who have either formal education and training or substantial experience in the field.  This includes expertise in 1) identifying unlawful harassment, discrimination, and retaliation; 2) what corrective measures to take   when harassing behavior occurs in the workplace; 3) how to report and respond to complaints; 4) an employer's obligation to conduct an investigation into complaints; 5) essential components of an anti-harassment policy; 6) and the effect of harassment on the work environment.  If the trainer does not have legal training, then a legal professional must be available to answer questions.
• The new regulations clarify that only supervisors located in California are subject to the    training requirement although employees in all locations are counted in determining which employers meet the 50 employee threshold.
• The prevention training must be interactive prompting the supervisor's participation.  This includes, but is not limited to, using questions or quizzes that encourage learning and comprehension; problem solving and skill-building activities that assess the supervisor's application of the law and learning content to certain situations; and hypothetical scenarios about harassment with discussion questions.
• Supervisors who received anti-harassment training in compliance with California law within two years either from a current or prior employer need only be required to read and acknowledge receipt of the employer's sexual harassment/discrimination policy within six months of assuming the new position.  However, the new supervisor must be put on a two year tracking period based on that particular supervisor's last harassment training date.
• Training does not need to be completed in two consecutive hours.  It can be divided into segments of no less than thirty minutes.

Checklist for California Employers To Comply With The New Regulations

   Though the new regulations are not effective until approximately February 1, 2007, it is recommended that employers commence with the following immediately: 

• Identify all employees who are required to undergo sexual harassment training.  This is important as the two year period is quickly approaching for supervisors who were originally trained in 2005.
• Reevaluate the selected trainer to ensure they have the requisite training set forth in the new regulations.  Prior to these regulations, employers were given no guidance on the minimum qualifications required of the trainer.  Burnham Brown's employment law attorneys are experienced trainers with the proper education on discrimination and harassment and are available to assist.
• Decide which tracking method you will utilize in training your supervisors.  It is          important to use either the individual tracking method or designated "training year" method and stick to it.  This will ensure all supervisors are trained in accordance with the law.
• Retain documentation that the supervisor completed the training and retain the        documents for at least two years.  This is no longer an option but a requirement pursuant to the new regulations.
• Contact an attorney to ensure that your training program is in compliance with the law.  Even with the clarifying regulations, there are unanswered questions, and Burnham Brown's employment attorneys are ready to discuss the issues.

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.  Allyson Cook is a member of Burnham Brown's Employment Law Department and can be reached at 510.835.6811 or acook@burnhambrown.com.