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California Fair Employment and Housing Commission Issues Regulations on Mandatory Sexual Harassment Training

August 24, 2007

Under legislation adopted in 2004 (AB 1825), California employers with 50 or more employees are required to provide two hours of sexual harassment training to all supervisors at least once every two years. See http://www.kmm.com/articles-326.html. Covered employers should now review and ensure that their training procedures satisfy the final regulations approved by the California Fair Employment and Housing Commission on July 18, 2007.  The newly titled “Sexual Harassment Training and Education” regulations (California Code of Regulations, Title 2, §7288.0) became effective on August 17, 2007. 

Qualifications of Trainers

The regulations require that, through a combination of training and experience, trainers be able to educate supervisors on the following:

1.      Definitions of unlawful harassment, discrimination and retaliation under  both California and federal law;

2.      Steps to be taken when harassing behavior occurs in the workplace;

3.      How to report a harassment complaint;

4.      How to respond to a harassment complaint;

5.      An employer’s obligation to conduct a workplace investigation of a harassment complaint;

6.      What constitutes retaliation and how to prevent it;

7.      Essential components of an anti-harassment policy; and

8.      The effect of harassment on harassed employees, co-workers, harassers and employers.

In addition to these qualifications, trainers must fall within one or more of the following categories:

1.  “Attorneys” admitted for two or more years to the bar of any state in the United States, and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964; or

2.  “Human resource professionals” or “harassment prevention consultants” working as employees or independent contractors with a minimum of two years of practical experience in one or more of the following:

            a.    designing or conducting discrimination, retaliation and sexual 
                   harassment prevention training;

            b.    responding to sexual harassment complaints or other 
                   discrimination complaints;

            c.    conducting investigations of sexual harassment complaints; or

            d.    advising employers or employees regarding discrimination, 
                   retaliation and sexual harassment prevention; or

3.  “Professors” or “instructors” in law schools, colleges or universities, who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.

Permissible Forms of Training

According to the regulations, effective interactive training includes classroom training, e-learning, and webinars.

Webinar training is an Internet-based seminar whose content is created and taught by a trainer and transmitted over the Internet or an intranet in real time.  Employers using a webinar for their supervisors must document and demonstrate that each supervisor not physically present in the same room as the trainer attended the entire training and actively participated in the training’s interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities.  Also, the webinar must provide the supervisors with an opportunity to ask and obtain answers to questions and to otherwise seek guidance and assistance.

E-learning training is individualized, interactive, computer-based training created by a trainer and an instructional designer.  Any e-learning training must provide a link or directions on how to contact a trainer who will be available to answer questions and to provide guidance and assistance within a reasonable period of time after the supervisor asks the questions, but no more than two business days after the question is asked. 

The regulations also allow for other “effective interactive training,” which includes the use of audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training.

Documentation

Employers are required to maintain documentation, for a minimum of two years, of the training they have provided employees.  The documentation should include the name of the supervisory employee trained, the date of the training, the type of training and the name of the training provider. 

Up until August 17, 2007, employers who made a good-faith effort to follow the AB 1825 requirements without benefit of final regulations were deemed to be compliant.  However, now that the regulations are in full effect, a good-faith effort is insufficient to meet the requirements.  Employers should carefully review their sexual harassment prevention training program to make certain that the specific requirements of the regulations are met.

For further information regarding the requirements of AB 1825 and the new regulations, please contact any of the attorneys in our San Francisco or Los Angeles office.