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New Guideline for Your Harassment Training

Do you know just what your harassment training programs should include? All employers should review their training programs now in order to ensure compliance with new guidelines issued by the California Fair Employment and Housing Commission (FEHC). The FEHC is the agency charged with enforcement of the harassment training law. (See training.asp)

Who Must Comply?
Pursuant to California Government Code Section 12950.1, employers with 50 or more employees or contractors are required to provide all supervisory employees with at least two hours of classroom or other effective interactive training and education regarding the prevention of sexual harassment. The 50 employee requirement “means employing or engaging fifty or more employees or contractors for each working day in any twenty consecutive weeks” in the present calendar year. The law does not require that the 50 employees work at the same location or all work or reside in California.

What Are The Specific Training Objectives?
The guidelines set forth content objectives for training both “to assist California employers in changing or modifying workplace behaviors that create or contribute to ‘sexual harassment’” as defined by federal and California law, and “to develop, foster and encourage a set of values in supervisory employees” who undergo such training “that will assist them in preventing and effectively responding to incidents of sexual harassment.” In addition to laying out the general content objectives for mandated harassment training, the guidelines also address “e-learning” and “webinar” training, which may prove to be convenient alternatives to the traditional classroom training.

What Is “E-Learning” And “Webinar” Training, And What Are The Additional Requirements For Each?
The guidelines define “e-learning” as “individualized, interactive, computer-based training whose content is written, developed and approved by an instructional designer(s), qualified trainer(s) or subject matter expert(s).” “Webinar” is defined as “an internet-based seminar created and taught by a qualified trainer and transmitted over the internet or intranet in real time.” Employers may also opt for “other effective interactive training and education,” which may include the use of “audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training.”

In the event that the employer opts for an e-learning alternative to classroom training, the Commission requires that employers provide supervisors with trainers or educators who will make themselves available “within a reasonable period of time” to answer any questions the supervisor may have relating to the training. Furthermore, if a webinar format is utilized the Commission requires that employers obtain records demonstrating that a learner “attended the entire training and actively participated in the training’s interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities.” Finally, employers must comply with the minimum two hour harassment training requirement. That requirement may be fulfilled by two classroom hours, two webinar training hours, or “in the case of an e-learning program, a program that takes the supervisor no less than two hours to complete.”

Who Is Fit To A Be A “Qualified Trainer”?
The guidelines define a “qualified trainer” as an individual who has “legal education coupled with practical experience, or substantial practical experience in harassment, discrimination and retaliation” that can “effectively lead in-person or webinars.” The trainer must be qualified to train on a number of issues related to harassment as outlined by the FEHC guidelines.

How Do You Track Training?
Employers are required to provide training once every two years and have the option of using “individual” or “training year” tracking. Under the “individual” tracking system, an employer simply tracks “its training requirement for each supervisory employee, measured two years from the date of completion of the last training of the individual supervisor.”

Alternatively, an employer may use the “training year” tracking method and thereby “designate a ‘training year’ in which it trains its supervisory employees.” The employer will then retrain the supervisory employees no later than the next “training year,” two years later. In the case of newly hired or promoted supervisors who receive training within six months of assuming their supervisory positions, but in a different training year, “the employer may include them in the next group training year, even if it occurs sooner than two years.” Furthermore, a supervisor who has received anti-harassment training in compliance with the statute within the prior two years from either a current, prior or alternate joint employer “need only be given, be required to read and acknowledge receipt of, the employer’s antiharassment policy within six months of assuming” the new supervisory position or “within six months of employer’s eligibility.” The current employer, however, will have the burden of establishing the legal compliance with this section of the previous training. The employer may then place new supervisors on the two year track schedule.

What Records Should Be Kept And For How Long?
The Commission requires that employers keep documentation of harassment training in order to track compliance. The records should include “the name of the supervisory employee trained, the date of training, the type of training, and the name of the training provider.” The documentation records should be kept for a minimum of two years. What Should You Do To Ensure That Your Training Is In Compliance With The Law? Given the gravity and ramifications of sexual harassment claims, employers should consider taking some time to evaluate and strengthen their harassment training programs to meet the legal specifications. The following steps may help you in this process.

  • Know whether or not you are subject to the training statute. You may safely assume that you are subject to the training statute if you have 50 or more full time, part time, or temporary employees or contractors and at least one of them lives or works in California.
  • Train all supervisors who “directly” supervise California employees. If you are not sure whether the supervision is “direct” or otherwise, assume it is direct and train them.
  • Maintain a fixed training schedule that is easily enforceable. Group your supervisors by “training year” and set fixed training schedules to facilitate your training requirement.
  • Evaluate your training programs regularly. Look for any changes in applicable California and federal law.
  • Protect yourself from harassment claims by going beyond the minimum training required. Consider:
    (a) expanding harassment training to include topics that are recommended but not required under the law;
    (b) training your supervisory employees even if your company is not subject to Section 12950.1; and
    (c) providing more than the minimum two hour training.