Authored by Steve Holden. Published in the Sacramento Business Journal November 2018.
At a recent presentation I made the statement “Harassment prevention training is a requirement for every employer in the State of California.” A seasoned human resource professional in the audience politely responded, “I think you may be wrong. The training is only required for employers with 50 or more employees.” Was I wrong? Would I be writing about it if I was?
The audience member failed to account for two important aspects of California harassment law. First, the law is expanding on January 1, 2019 to mandate training for employers with five or more employees. Second, all employers have long been required “to take all reasonable steps necessary to prevent harassment from occurring,” and it would be nearly impossible for an employer to prove that it is unreasonable or unnecessary to conduct some form of harassment prevention training.
After the first of the new year, employers with five or more employees will be required to train all managers and supervisors within six months of being hired or moved into a supervisory position and every two years thereafter. Previously the requirement applied to employers with 50 or more employees. The training must be at least two hours in length and must include information and practical guidance regarding the applicable laws and the prevention and correction of sexual harassment. It must also cover the remedies available to workers subjected to harassment and include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation. The training must be interactive and presented by trainers with specific knowledge and expertise. Online training is permissible provided it meets all the content requirements, is interactive and is created by experts.
Additionally, employers with five or more employees will be required to train non-supervisory employees on harassment prevention. The training must be at least one hour in length and completed within six months of hire. Thereafter, employees must go through the training at least every two years.
The statute mandating the harassment prevention training has a couple of additional new twists for 2019 and beyond. It now specifies that the training can be conducted in conjunction with training on other subject matter and may be conducted in shorter segments as long as the applicable total hours requirement is met. The statute clarifies that the training can be completed by employees individually or as part of a group training session so long as it meets the “effective interactive” requirement. The statute specifies that beginning on January 1, 2020 the training for seasonal and temporary workers hired for less than six months must be conducted within 30 calendar days or within 100 hours of work whichever occurs first. Finally, the statute clarifies that the more intensive training required of farm labor contractors remains in effect and that beginning in 2020 non-supervisory employees must receive the same training now required for supervisors. In order to assist employers in meeting the training requirements, the new law directs the Department of Fair Employment and Housing to create online training modules that will be available to employers.
Even though the specific legal requirement to train applies only to employers with at least five employees, smaller employers are effectively forced to perform the training. Because training has become such a common practice and because it is readily available in several forms, an employer would be hard-pressed to prove that it took all reasonable steps to prevent harassment if some form of employee training is not conducted.
Specific Content for the Training
At a minimum, the training must include the thirteen items specified in the applicable regulations. These include statutory law, case law principles, remedies available, strategies to prevent harassment, practical examples, complaint handling, limited confidentiality, the essential elements of an anti-harassment policy and the negative effects of “abusive conduct.” In addition to full coverage of the thirteen items, the training must meet the learning objectives of (1) assisting employers in changing or modifying workplace behaviors that create or contribute to sexual harassment and (2) developing, fostering and encouraging a set of values in employees that will assist them in preventing and effectively responding to incidents of harassment.
New for 2019, employers are specifically authorized by statute to provide bystander intervention training that includes practical guidance on how bystanders can recognize potentially problematic behaviors and which motivates bystanders to take action when they observe problematic behaviors. The training is not required by the new statute, but employers would be foolish to not include it in their training programs.