California Sexual Harassment Prevention Training
As anti-harassment mandates continue to change, the fight to stay compliant is more challenging than ever before. From the West Coast to the East Coast, these laws can vary state by state.
To help you stay compliant, let’s narrow in on one: the Golden State.
If you have employees in California, we’ve got you covered with this guide on sexual harassment prevention training.
Here is everything you need to know:
Training in CA
According to Cal. Govt. Code § 12950.1 and Cal. Code Regs. tit. 2, § 11024, employers are required to provide employees with training and education to prevent unlawful harassment, discrimination, and retaliation based on sex, gender identity, gender expression, and sexual orientation.
This training is often referred to as “AB1825 training” in reference to the bill number (Assembly Bill 1825) under which it was originally passed. However, the law has been amended many times since its enactment in 2004. For example, significant changes to the training requirements took effect August 30, 2019 and needed to be met by January 1, 2021.
The law covers employers with five or more employees.
Note: An employer is required to train its California-based employees so long as it employs five or more employees anywhere, even if they do not work at the same location and even if not all of them work or reside in California.
In determining whether an employer meets the threshold of having five employees and being subject to the harassment prevention training requirement, independent contractors, volunteers, and unpaid interns must be counted; however, such individuals are not required to receive training.
For example, if an employer has two full-time employees and six unpaid interns, then the employer would meet the training threshold requirement and would need to ensure only the two full-time employees receive training.
All supervisory employees and all nonsupervisory employees in California must receive sexual harassment prevention training and education.
Note: Employers are not required to train independent contractors, volunteers, and unpaid interns.
Employers must provide:
- At least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California; and
- At least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees in California.
Thereafter, each covered employer must provide sexual harassment training and education to each employee in California once every two years.
New nonsupervisory employees must be provided training within six months of hire, and new supervisory employees must be provided training within six months of the assumption of a supervisory position. Of note, although the law does not specifically address the six-month timeline and training new nonsupervisory employees hired or promoted before January 1, 2021, a best practice is to train them within six months of their starting the position.
An employer may provide training in conjunction with other training provided to its employees. Additionally, the training may be completed individually or as part of a group presentation, and may be completed in shorter segments, if the applicable hourly total requirement is met.
Contents of Training
The required training and education must include:
- Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment;
- The remedies available to victims of sexual harassment in employment;
- Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation;
- Prevention of abusive conduct; and
- Training inclusive of harassment based on gender identity, gender expression, and sexual orientation, along with practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.
The training also must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
Employers may develop their own harassment training module or may direct employees to view the online training course from the Department of Fair Employment and Housing (DFEH) — either choice is permitted, deemed compliant (so long as it meets all legal requirements), and satisfies an employer’s obligations.
Trainers or educators qualified to provide training are individuals who, through a combination of training, experience, knowledge, and expertise can provide training regarding:
- The definitions of abusive conduct, sexual harassment per Cal. Govt. Code Ann. § 12490(j), gender identity, gender expression, sexual orientation, and the definitions of the other bases enumerated in the Fair Employment and Housing Act (FEHA) at Cal. Govt. Code Ann. § 12940(a).
- How to identify behavior that may constitute unlawful harassment, discrimination, and/or retaliation under both California and federal law.
- What steps to take when harassing behavior occurs in the workplace.
- How to report harassment complaints.
- Supervisors’ obligation to report harassing, discriminatory, or retaliatory behavior of which they become aware.
- How to respond to a harassment complaint.
- The employer’s obligation to conduct a workplace investigation of a harassment complaint.
- What constitutes retaliation and how to prevent it.
- Essential components of an anti harassment policy.
- The effect of harassment on harassed employees, co-workers, harassers, and employers.
- Practical examples in the prevention of harassment, discrimination, and retaliation based on sex, gender identity, gender expression, sexual orientation, and the prevention of abusive conduct.
Employers may utilize multiple trainers who, in combination, meet all the legal qualifications.
A trainer also must be one or more of the following:
- An attorney admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the FEHA and/or Title VII of the federal Civil Rights Act.
- “Human resource professionals,” “harassment prevention consultants,” or peer-to-peer trainers with a minimum of two years of practical experience in one or more of the following:
- Designing or conducting discrimination, retaliation, and harassment prevention training.
- Responding to harassment complaints or other discrimination complaints.
- Conducting investigations of harassment complaints.
- Advising employers or employees regarding discrimination, retaliation, and harassment prevention.
- Professors or instructors in law schools, colleges, or universities who have either 20 instruction hours or two or more years of experience in a law school, college, or university teaching about employment law under the FEHA and/or Title VII of the federal Civil Rights Act of 1964.
Employers may use any of the following training methods:
- Classroom training, which is in-person trainer-instruction that is created and provided to employees by the trainer and in a setting removed from the employees’ daily duties.
- Webinar training, which is an internet-based seminar with content that is created and taught by a trainer and provided by a trainer, real-time, online. An employer utilizing a webinar for its employees must document and demonstrate that each employee who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated with the training’s interactive content, discussion questions, hypothetical scenarios, polls, quizzes or tests, and activities. The webinar must provide the employees with an opportunity to ask questions, have them answered, and otherwise seek guidance and assistance. For two years after the date of the webinar, the employer must maintain a copy of it along with all written materials used by the trainer, all written questions submitted during the webinar, and document all written responses or guidance the trainer provided during the webinar.
- E-learning training, which is training that is individualized, interactive, computer-based training created by a trainer and an instructional designer. It must provide a link or directions on how to contact a trainer who must be available to answer questions and provide guidance and assistance about the training within a reasonable time after the employee asks the question, but no more than two business days after the question was asked. The trainer must maintain all written questions received, and all written responses or guidance provided, for two years after the date of the response.
- Other effective interactive training and education, which includes the use of audio, video, or computer technology in conjunction with classroom, webinar, and/or e-learning training. These, however, are supplemental tools that cannot, by themselves, fulfill the training requirements.
The training and education must include the following for any of the permitted methods:
- Questions that assess learning.
- Skill-building activities that assess the employee’s application and understanding of content learned.
- Numerous hypothetical scenarios about harassment, each with one or more discussion questions so that employees remain engaged.
For example, suitable activities include pre- or post-training quizzes or tests, small group discussion questions, discussion questions that accompany hypothetical fact scenarios, use of brief scenarios discussed in small groups or by the entire group, or any other learning activity geared towards ensuring interactive participation as well as the ability to apply what is learned to the employee’s work environment.
Note: The minimum duration of a training segment may be no less than 30 minutes for classroom training or webinars. E-learning courses may include bookmarking features, which allow an employee to pause their individual training so long as the actual e-learning program meets the minimum hourly requirement.
Training Tracking and Documentation
The mandatory training may be tracked by either of the following methods or a combination thereof:
- Individual tracking; or
- Training year tracking, where an employer designates a training year when it trains its employees and thereafter must retrain by the end of the next training year, two years later.
For a minimum of two years, employers must document the training they have provided. Such documentation must include:
- The names of the supervisory employees trained.
- The date of training.
- A sign-in sheet, as applicable.
- Copies of all certificates of attendance or completion issued.
- A description of the type of training.
- Copies of all written or recorded materials that comprise the training.
- Name of the training provider.
Employers must provide employees with a sexual harassment poster or brochure.
Anti-harassment mandates aren’t the only laws that keep changing in California. To stay compliant with pandemic-related regulations, check out California’s New COVID-19 Vaccination Leave.
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