Employers Group: Training and Development Overview

New California Law AB 1825
Prevention of Sexual Harassment Training
Effective January 2005

Overview

Any employer with 50 or more employees must provide at least two hours of classroom or other effective interactive training on sexual harassment (including discrimination and retaliation) to all supervisory employees ... presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.

Employers, Supervisors & Implementation Dates

Definition of Employer:

Any entity with 50 or more persons. For counting purposes, AB 1825 requires employers to count any person who is:

Definition of Employees:

Regularly employed
(note: the definition of an employee is very broad for counting purposes. It includes full-time, part-time, and temporary employees. The question is "do you count persons outside California?" According to the agencies involved, it's an open question and recommend counting those employees inside and outside California -- pending clarification from regulations or the courts.), OR

Regularly providing services under contract or as an agent, whether directly or indirectly
(note: includes independent contractors, leased employees, and full or part-time temps. Same answer as above about counting persons outside California.)

The State, any political or civil subdivision of the state, and any City

Definition of Supervisor:

While AB 1825 does not define “supervisor”, it’s broadly defined elsewhere in the law: anyone who directs other employees, or has the authority (or significant influence) to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, adjust grievances, or discipline other employees.

Employers must by January 2006:

Train all supervisors employed as of July 2005--unless trained after January 2003
(note: the training must meet the requirements of AB 1825).
Train supervisors within 6 months of their hire or promotion date

After January 2006, train each supervisor once every 2 years.

Training Requirements

At least 2 hours* of:

Classroom OR
Other effective interactive training
(note: the new law does not define "interactive." However, according to the California Department of Fair Employment and Housing (DFEH) and the Fair Employment and Housing Commission (FEHC), "interactive training" does NOT require a live instruction. It can be web-based training if the trainees can submit questions and receive answers. So, a video or "talking heads" in an online program do not qualify. )

�Trainer must have specific expertise:

The trainers or educators must have ‘knowledge and expertise in the prevention of harassment, discrimination and retaliation
(note:The DFEH & FEHC further said that training need NOT be conducted by an attorney. The trainer or educator can be a human resource professional familiar with applicable laws. This would meet the "knowledge and expertise" test.)

�Training courses must include:

Information and practical guidance regarding State and federal provisions concerning sexual harassment that cover:

Type of conduct prohibited
How to prevent and correct sexual harassment
What remedies are available to victims of sexual harassment

Practical examples on the prevention of:

Harassment
Discrimination
Retaliation

To Train or Not to Train

Employers who fail to train are not automatically liable in any action alleging sexual harassment. But, if an employee complains, the FEHD Commissioner “shall” issue an order that requires the employer to comply with AB 1825. If an employer complies with the new law, it does not insulate the employer from liability for sexual harassment of any current, former employee or applicant.**

* note: AB 1825 expressly states that it "establishes a minimum threshold and does NOT … relieve employers from providing longer, more frequent … training regarding harassment or other forms of discrimination to meet the employer’s obligation [under FEHA] to take all reasonable steps necessary to prevent and correct harassment and discrimination."

** note: there are good reasons to train ALL employees:

Reduce Claims: Training can do more than deliver information. It can change behavior. And, changing behavior is the most cost-effective way to avoid the risk. Some studies show a 40% reduction in claims.

Avoid Consequences (Affirmative Defense): In 1998, the US Supreme Court declared (EEOC agreed) that employers should "periodically" train employees. And, if they do train and an employee makes a claim, the employer may be able to avoid liability even if the alleged bad conduct occurred.

Avoid Punitive Damages: The Court also stated that if employees win a claim for harassment or discrimination, employers will avoid punitive damages if they show a good faith effort to comply with the law (train employees). Policy statements and handbooks are not enough.