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Legislative Update

February 2006

Amy L. Lessa, Esq.
FISHER & PHILLIPS LLP
4225 Executive Square, Suite 950
La Jolla, California 92037
phone: (858) 597-9600
fax: (858) 597-9601
www.laborlawyers.com

PROPOSED REGULATIONS ON SUPERVISOR HARASSMENT TRAINING - OPEN FOR COMMENT

On December 16, 2005, the California Fair Employment and Housing Commission issued proposed regulations on California’s mandatory supervisor sexual harassment training requirement, which requires California employers with 50 or more employees to provide two hours of sexual harassment training to all supervisors once every two years. The training requirement is set forth at California Government Code section 12950.1 (“Section 12950.1), but is frequently referred to as “AB 1825” training after the 2004 legislation that established the law. If adopted, the proposed regulations will be set forth at California Code of Regulations, title 2, section 7288.0.

The proposed regulations are open for public comment and, like the proposed meal and rest period regulation, will likely change one or more times before they are finalized and approved. However, even in draft form, they provide some helpful insight to California employers on the new law and should be tracked closely by employers to ensure that future training sessions comply with the regulations once they become final.

A. Who is a Covered Employer?

Section 12950.1 defines a covered employer as one that regularly employs fifty or more persons, including temporary service employees and independent contractors. The proposed regulations specify that covered employers include both private employers with fifty or more employees as well as the state of California, counties and any other political or civil subdivision of the state and cities, regardless of the number of employees.

The proposed regulations also provide that “fifty or more employees” means fifty or more employees for each working day in any twenty consecutive weeks in the current or preceding calendar year. Under the proposed regulations, all employees count for the fifty employee threshold, even if they do not work at the same location and even if they do not reside in California.

B. Who Must Receive Training?

Section 12950.1 requires training of all supervisory employees, but does not define supervisor. The proposed regulations define supervisor to comport with the definition contained in the Fair Employment and Housing Act (“FEHA”). FEHA defines supervisor broadly to include any individual 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.”

C. How Does the Training Have to Be Conducted?

Section 12950.1 requires two hours of “classroom or equally effective interactive training and education.” The proposed regulations offer further insight into this requirement by explaining that training can mean any one of three options: (1) classroom training, which means in-person training created by a qualified instructional designer and presented by a qualified trainer, (2) e-learning, which means an individualized, computer-based training created by a qualified instructional designer or (3) a webinar, which means a web-based seminar created by a qualified instructional designer and presented by a qualified trainer.

The proposed regulations also specify that “other effective interactive training and education” includes non-classroom instruction by the use of audio, video or computer technology, provided that there are opportunities for feedback, for asking questions and having them answered and for testing that measures progress and knowledge. The proposed regulations also explicitly allow for e-learning and webinars provided that they incorporate feedback or participation every fifteen minutes.

D. Who Can Conduct the Training?

Section 12950.1 requires that the harassment be presented by trainers or educators with knowledge and expertise in preventing harassment, discrimination and retaliation. The proposed regulations seek to clarify which individuals are qualified under the law. They provide that “trainers or educators” includes: “California licensed attorneys, human resource professionals, psychologists or others provided that they have legal education or practical experience in harassment training and knowledge of California laws prohibiting unlawful harassment.”

The proposed regulations also require that the trainer or educator be qualified to cover the following subject areas:

What unlawful harassment is;
How to intervene when harassing behavior occurs in the workplace;
How to report complaints of harassment;
How to respond to harassment complaints;
How to investigate harassment complaints and an employer’s obligation to do so;
The illegality of retaliation and how to prevent it from occurring following receipt of a harassment complaint;
The employer’s anti-harassment policy.

E. What Does the Training Have to Cover?

Section 12950.1 requires that the harassment training include information and practical guidance about federal and state laws on harassment, prevention and correction techniques, and discussion of the remedies available to victims of sexual harassment and practical examples about preventing harassment, discrimination and retaliation.

The proposed regulations also require that the training include, but not be limited to the following topics, many of which overlap with the requirements set forth in Section 12950.1:

A definition of unlawful harassment under state and federal law;
State and federal provisions and case law concerning the prohibition against and the prevention of unlawful harassment;
Types of conduct that constitutes harassment;
Remedies available for harassment;
Strategies to prevent harassment in the workplace;
Practical examples, including role plays, case studies, group discussions and examples that employees can identify with;
The confidentiality of the complaint process;
Resources for victims of unlawful harassment, including reporting information;
Training on how to conduct an effective investigation of a harassment complaint;
Training on what to do if the supervisor is personally accused of harassment;
Training on the contents of the employer’s anti-harassment policy and how to use the policy if a complaint is filed.

F. Completion Dates, Frequency of Training and Tracking

Section 12950.1 requires that supervisors receive sexual harassment training every two years, but do not specify what, if any method, employers may use to track the two year requirements. The proposed regulations provide two methods that employers can use to track harassment training – (a) individual tracking or (b) training year tracking. As its name suggests, individual tracking follows individual employee’s training dates. Individual tracking would likely work best for employers with only a handful of supervisors to track and/or for those employers using individual training sessions. To track by training year, employers would designate a training year every two years (e.g. training completed in December 31, 2005, by December 31, 2007, by December 31, 2009, etc.) and ensure that all supervisors are trained in that year. Training year tracking would work best for employers with a significant number of supervisors to track and/or those training through group sessions.

Under either of the two methods allowed under the proposed regulations, employers would still have to comply with the statutory requirement that new supervisors or newly promoted supervisors receive the required training within six months of hire or promotion regardless of which method they use. While perhaps implied in the six-month statutory training requirement, the proposed regulations also clarify that new businesses created after January 1, 2006 must provide training within six months of their establishment and then every two years, according to one of the above methods.

G. Compliance With the Law

According to Section 12950.1, the only penalty for failure to comply with the law is an order by the California Fair Employment and Housing Commission to comply. The regulations do not change this penalty nor do they provide any additional penalties for noncompliance.

The proposed regulations do, however, provide something of a safe harbor provision for employers who have conducted training prior to the date on which the regulations become effective. The proposed regulations provide that: “An employer who has made a substantial, good faith effort to comply with section 12950.1 prior to the effective date of these regulations shall be deemed to be in compliance ... as though it had been done under these regulations.”

H. Implementation of Proposed Regulations

While it is tempting to begin relying on the proposed regulations immediately, the regulations may undergo substantive revisions and may not be finalized and approved for some time. As it stands, the public comment period for the December 16, 2005 version of the proposed regulations ends in mid-February 2006.

However, employers should be aware of the ongoing status of the proposed regulations and its requirements for planning any future training sessions.

This column is intended to provide general information and does not constitute legal advice. Fisher & Phillips LLP is a national law firm representing employers exclusively in labor and employment matters. Amy Lessa works in the San Diego office of Fisher & Phillips LLP and can be reached at (858) 597-9600.

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