Employment Law

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New Sexual Harassment Training Requirements for California Employers
Michael R. Minguet, Associate, Paul, Plevin, Sullivan & Connaughton LLP, San Diego
E-mail: mminguet@paulplevin.com
Website: www.paulplevin.com

In stark contrast to 2003, when former Governor Davis signed a myriad of bills into law that impacted California employers, Governor Schwarzenegger vetoed the overwhelming majority of employment-related bills presented to him in 2004. In fact, Governor Schwarzenegger vetoed several significant employment-related bills, including bills that would have increased the state’s minimum wage, expanded employer liability for failing to provide safe workplaces, and prohibited employers from monitoring employee activity through electronic devices without providing notice. In vetoing these bills, Governor Schwarzenegger explained that increasing the burdens and costs to employers would create undue barriers to California’s economic recovery.

Despite the desire to minimize the costs and burdens on employers, Governor Schwarzenegger did approve a few bills that will affect California employers, including Assembly Bill 1825, which amends the California Fair Employment and Housing Act to require covered employers to provide at least two hours of sexual harassment training to all supervisory employees by January 1, 2006, and once every two years thereafter. Below is a summary of the new sexual harassment training requirements.

Which Employees Must Comply?
The training requirements apply only to California employers regularly employing 50 or more employees or regularly receiving the services of 50 or more persons pursuant to contract, or any person acting as an agent of an employer, directly or indirectly. Thus, there is no distinction between full-time, part-time, or temporary employees and independent contractors, in calculating the number of employees necessary to be a covered employer. Further, although the new law provides no guidance regarding whether out of state employees will be counted to determine coverage, other similar coverage provisions generally count only employees working in California.

Which Employees Must Be Trained?
The new law requires sexual harassment training for each "supervisory employee." What defines such an employee is not specifically outlined by the legislation. However, the Fair Employment and Housing Act broadly defines the term "supervisor" 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, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment." Govt C § 12926. Interpreting this language, the California Court of Appeal recently determined that a "supervisor" includes any individual that simply directs an employee’s daily duties, even if the individual is not accountable or responsible for the employee’s performance and work product. (Chapman v Enos (2004) 116 CA4th 920). Accordingly, when determining which employees need to be trained, employers should look beyond employee titles and positions and consider the actual duties and responsibilities of each employee.

Specified Timing of Training
Covered employers must provide the required training to all supervisors employed as of July 1, 2005, by no later than January 1, 2006. Notably, employers who already conducted training for their supervisors in or after 2003 will not have to comply with the initial training deadline. Further, employers must provide sexual harassment training and education to each supervisor once every two years after January 1, 2006. Finally, each new supervisor, meaning those hired or promoted after July 1, 2005, must be trained within the first six months on the job.

Type of Training
The training must include information and practical guidance regarding federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment, as well as the remedies available to victims of sexual harassment. In addition, the training should include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation. The training should be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.

Further, the training must be presented by classroom or some other "effective interactive" training method. Although the law does not specifically define what qualifies as other "effective interactive" training, simply reading training materials or watching a video may not be sufficient without additional interaction—such as role playing or group discussions. Thus, employers who intend to use video or Internet conferencing training methods should make sure that the program, at a minimum, includes interactive components that encourage the participants to ask questions and participate in discussions.

Consequences of Non-Compliance
The new law does not provide a penalty for non-compliance. However, the Fair Employment and Housing Commission, which is responsible for enforcing compliance, may audit employers and issue an order mandating compliance. Thus, although there are no specific reporting or record-keeping requirements, employers should maintain accurate training records in case of an audit.

Finally, it should be noted that compliance with the training requirements will not insulate an employer from liability for the sexual harassment of any current or former employee. At the same time, non-compliance will not by itself result in the liability of an employer for any alleged sexual harassment.

Conclusion
Although the initial training deadline is over one year away, California employers covered by the new training requirements should begin to prepare now for the deadline. For instance, covered employers should begin to create lists of employees who need to be trained, research trainers and training method options, and develop a record-keeping system to track trainings in case of an audit.

 

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