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California Requires Sexual Harassment Training for All Employees
California legislation (SB 1343) enacted in 2018 requires employers with at least five employees or contractors to provide sexual harassment training every two years to all employees. The training must take at least 1 hour for nonsupervisory employees and at least 2 hours for supervisory employees to complete. In addition, the new law specified certain content that must be included in the training.
This is a change in California law, which previously required employers with 50 or more employees to provide sexual harassment training only to supervisors.
The following FAQs are intended to help organizations comply with the California training requirements.
What employers are covered under California’s sexual harassment prevention training law?
Employers with five or more employees or other persons providing contracted services must provide sexual harassment prevention training to California employees.
Employees or contractors who work outside California count when determining if an employer must provide sexual harassment prevention training. For example, if the employer has two California employees but has a total of five workers, the employer must provide sexual harassment training to the two employees who work in California.
When is the deadline to provide sexual harassment training to all employees?
The initial training deadline, January 1, 2021, has passed.
Are employees required to be retrained?
Yes. All employees must be retrained once every two years.
When must new employees and new supervisors be trained?
Covered employers must provide sexual harassment training to new employees within six (6) months of hire and must train new supervisors within six (6) months of assuming a supervisory position.
A supervisor is anyone with authority to hire, fire, assign, transfer, discipline, or reward other employees. A supervisor is also someone with the authority to effectively recommend these actions if exercising that authority requires the use of independent judgment.
Who must be trained?
All employees and supervisors in California must be trained. The law does not require employers to train independent contractors, volunteers, or unpaid interns. Nevertheless, prudent employers provide training to these persons to ensure a harassment-free workplace for everyone.
Employers are not required to train employees who do not work in the State of California. Note, however, that other states in which employees work may have similar sexual harassment training requirements.
Moreover, prudent employers will recognize that providing training to independent contractors and out-of-state employees who regularly interact with California employees is an essential component of protecting itself from harassment liability in California. As expressly stated in the law, the requirements establish a “minimum threshold” and “should not…relieve any employer” from providing any additional training necessary “to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.” (Cal. Gov. Code § 12950.1(e).)
Are employers required to train temporary and seasonal employees?
Yes. Employers must provide training to any employee who works less than six (6) months, including temporary and seasonal employees.
The training must be provided either within thirty calendar days from the first-day worked; or within the first 100 hours worked, whichever occurs first.
However, an employer who is a client of a temporary staffing agency need not train individuals at the worksite who are provided by the agency. Instead, the temporary staffing agency is required to train those individuals.
Is the training required to be a certain length?
Yes. The training must be one hour for nonsupervisory employees and two hours for supervisory employees.
Can the training be completed individually online?
Yes. The training may be completed individually online so long as it meets the effective e-learning and duration requirements.
Also, the training need not be completed all at once. It may be completed in shorter segments, provided the length requirement is met. E-learning training may use bookmarking features, which allows the employee to pause the training, so long as the actual e-learning content meets or exceeds the time requirements.
What must be included in the content of the training?
California employers must ensure the training includes information and practical guidance on the following:
- The definition of sexual harassment under Title VII and FEHA
- Federal and state statutes and case law prohibiting and preventing sexual harassment
- Types of conduct that constitute sexual harassment with practical examples
- The definition of “abusive conduct” under state law
- Prevention strategies for harassment and abusive conduct
- Information about preventing abusive conduct and harassment based on sexual orientation, gender identity, and gender expression
- Supervisor’s duty to report harassment
- What to do if a supervisor is personally accused of harassment
- An explanation of limited confidentiality of the complaint and investigation process
- Questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions
- Remedies and resources (to whom to report harassment) available for sexual harassment victims
- How employers must correct harassing behavior
The training must also include the employer’s anti-harassment policy and employees must read and acknowledge receipt of the policy.
Are employers required to provide bystander intervention training?
No. However, California law encourages employers to include bystander intervention training as part of harassment training. Specifically, employers are encouraged to provide all employees with bystander intervention training providing practical guidance on how to enable bystanders to recognize and take action when they observe problematic behaviors. The purpose of the training is to provide employees who may see sexual harassment occurring in the workplace with the sills and confidence to intervene, and the resources for support if they are unable to intervene.
Clear Law Institute’s online training Positive Workplace covers prevention of sexual harassment and all forms of harassment, discrimination, and retaliation, as well as bystander intervention, workplace civility, and bullying prevention.
Who can present the training?
The training must “be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.”
In addition, a qualified trainer must be one of the following:
- An attorney with at least two years of experience whose practice includes employment law under the Fair Employment and Housing Act (FEHA) or Title VII of the federal Civil Rights Act of 1964;
- A human resource professional or harassment prevention consultants with at least two years of practical experience in:
- designing or conducting training on discrimination, retaliation, and sexual harassment prevention;
- responding to sexual harassment or other discrimination complaints;
- investigating sexual harassment complaints; or
- advising employers or employees about discrimination, retaliation, and sexual harassment prevention; or
- A law school, college, or university instructor with a post-graduate degree or California teaching credential and 20 hours of instruction about employment law under the FEHA or Title VII.
Unlike most training providers, Clear Law Institute has the in-house legal expertise to ensure training is legally accurate when produced and kept up-to-date with any changes in the laws.
Through knowledge, experience, training, and expertise, a trainer must have the ability to provide training on the following topics:
- definitions of abusive conduct, sexual harassment, gender identity, gender expression, sexual orientation, and other protected characteristics under FEHA
- identification of behavior constituting unlawful harassment, discrimination, and/or retaliation under both California and federal law
- how to deal with harassing behavior in the workplace
- reporting harassment complaints
- supervisors’ duty to report harassing, discriminatory, or retaliatory behavior they become aware of
- the proper response to a harassment complaint
- employer’s obligation to investigate a harassment complaint
- what is retaliation and how to prevent it
- essential aspects of an anti-harassment policy
- the negative effects of harassment on individuals in the workplace
- practical examples of prevention of harassment, discrimination, and retaliation based on sex, gender identity, gender expression, sexual orientation, and the prevention of abusive conduct
Clear Law Institute’s in-house compliance team has more than 50 years of combined employment law experience, including prevention of discrimination and harassment.
What is “Interactive, E-learning” training?
“E-learning” is an individualized, interactive, computer-based training created by a trainer and instructional designer with expertise in instructional best practices.
“Interactive” is training that has an “interactive feature that requires viewers to respond to questions periodically throughout the training in order for the online training courses to play.”
To be interactive, the training must allow employees to ask the trainer questions and have them answered. If the employee is taking an online course, the course must include instructions on how to contact a qualified trainer who can provide expert answers to the questions within two business days.
Clear Law Institute’s online sexual harassment training, Positive Workplace, includes an in-house compliance team to answer user questions within one business day.
What are the learning objectives of the training?
California regulations state that the learning objectives of the training must be designed to:
- Assist employers in correcting workplace behaviors that create or contribute to harassment based on sex, gender identity, gender expression, and sexual orientation.
- Provide employees with information about the negative effects of abusive conduct.
- Develop, foster, and encourage values in employees that will help them prevent, effectively respond, and develop methods to promptly address and correct harassing, or other wrongful workplace behavior in the workplace.
Do employees or supervisors who were trained at another employer need to retake the training?
It depends. If an employee or supervisor took compliant training at another employer within the past two years, they need not retake the training. Note that the employer still must provide a copy of its anti-harassment policy to all new employees within six (6) months of hire. However, each employer is responsible for ensuring that all employees including supervisors, receive training that complies with California training requirements. Most employers find it easier to have employees and supervisors retake the training provided by their organization to ensure compliance and avoid potential liability for relying on training provided elsewhere.
When do employees need to be retrained?
Employees must receive sexual harassment training once every two years. Employers may use a two-year “training year” cycle to determine when to retrain employees. For example, if an employer trains employees sometime in 2020, the employer must provide retraining no later than December 31, 2022. Employers who adopt this tracking method need to ensure that new employees and supervisors who receive training within six months of hire/promotion are included in the next training year, even if that is less than two years after their initial training. An employer may not extend the training year for the new employees and new supervisors beyond the two-year training year.
Employers may also use individual tracking to determine retraining requirements. In this case, the employer must ensure that each employee receives retraining within two years from the date they last completed training.
What documentation must an employer keep regarding the training?
Employers must keep documentation relating to employee training, including, but not limited, to:
- names of employees trained
- date of training
- a sign-in sheet
- a copy of all certificates of attendance or completion issued
- the type of training
- a copy of all materials (written or recorded) that comprise the training
- name of the training provider
The employer must maintain this documentation for at least two years.
Do employers have to pay employees for the training time?
Yes, employees must be paid for the training time. California law states that the employer “shall provide…” sexual harassment and abusive conduct training. Thus, it is the employer’s responsibility to provide training – and not employees – and therefore the employer must pay for any costs incurred in implementing training. In fact, the DFEH is authorized to seek a court order to compel an employer to provide the training. The statutory language also makes clear that employees may not be required to take the training during personal time. Instead, the training must be provided as part of their employment.
What if the law changes and my organization’s training courses need to be updated?
While many providers offer training on preventing workplace harassment, few have the legal and instructional design expertise required to comply with harassment training laws, such as those in California.
Clear Law Institute’s more than 1,000 clients sleep well knowing that we regularly monitor laws around the country to ensure our training stays up-to-date and compliant. Indeed, we have updated our harassment course on numerous occasions in the last few years to comply with new state and local training laws. Importantly, Clear Law does not charge its clients to update course content due to changes in the law.
Are there any other harassment-prevention obligations under California law?
Yes, including those summarized below.
Employers must display required workplace posters: All employers must post the California Law Prohibits Workplace Discrimination and Harassment poster (DFEH-E07P). Employers with at least five employees must post (a) the Transgender Rights in the Workplace poster (DFEH-E04P) and (b) the Your Rights and Obligations as a Pregnant Employee poster, poster (DFEH-E09P). Employees with at least 20 employees must post the Family Care and Medical Leave and Pregnancy Disability Leave poster (DFEH-100-21).
Employers must distribute the DFEH Sexual Harassment Fact Sheet to all employees.
Employers must also distribute a Sexual Harassment Poster or fact sheet issued by the DFEH to all employees. An employer may choose to distribute individual copies of the poster (DFEH-185P) or the fact sheet (DFEH-185) to meet the “brochure” requirement.). The employer may choose the distribution manner as long as the method chosen ensures all employees receive the brochure.
In the alternative, an employer may develop an equivalent written notice containing the required information:
- the definition and illegality of sexual harassment under state and federal law
- a description of sexual harassment with examples
- the employer’s internal complaint process available to employees
- legal remedies and the complaint process available through the California Department of Fair Employment and Housing (DFEH)
- directions on how to contact the DFEH
- the protection against retaliation
- a link to, or website, for the sexual harassment online training course developed by the DFEH
Employers must adopt and distribute a written discrimination and harassment prevention policy. The policy must contain specific information set forth in the regulations and must be distributed in a manner that ensures every employee receives a copy of and understands the policy. See 2 CCR § 11023(b) for more information.
Are there any other recent harassment-related updates under California Law?
Yes, including those summarized below.
Employer Liability for Harassment by Non-Employees
SB 1300 expanded harassment protection and liability under the Fair Employment and Housing Act (FEHA). Under this new law, employers may be liable for unlawful harassment perpetrated by non-employees against employees or non-employees, including interns, volunteers, and contractors. Previously, FEHA only addressed sexual harassment liability by non-employees. The law went into effect on January 1, 2019.
Liability for a Single Incident of Harassment
SB 1300 also rejected the “stray remarks doctrine” and confirms that a single incident of harassing conduct is sufficient to create a triable issue of the existence of a hostile work environment. The law went into effect on January 1, 2019.
As a result, California law now provides that “a single incident of harassment is sufficient to create a triable issue of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”
Prohibition Against Certain Non-Disparagement and Release of Claims Provisions in Agreements
SB 1300 also prohibited employers from requiring an employee to execute a release of claims under FEHA or sign a non-disparagement agreement preventing disclosure of unlawful workplace acts in exchange for a raise or bonus or as a condition of continued employment. Any such agreement is deemed void as contrary to public policy. The law went into effect on January 1, 2019.
Non-Disclosure Agreements Banned
SB 820 prohibited and voided non-disclosure clauses in settlement agreements arising from sexual assault or harassment, sex discrimination, or retaliation claims entered into on or after January 1, 2019.
More specifically, an employer may not require an employee to sign a release, non-disparagement agreement, or any other document that prohibits a person from disclosing information about unlawful acts in the workplace.
However, the new law allows a claimant to request an agreement provision that shields their identity (including facts that could reveal their identity) and preclude disclosure of the settlement amount paid if the opposing party is not a public official or government agency.
What should employers do now?
Employers should take the following steps:
Step 1: Determine if California sexual harassment training laws apply to your organization
Do you have at least five workers, counting both employees and independent contractors? If no, you are not required to provide training.
If Yes: Do you have any employees working in California? If no, you are not required to provide training.
If Yes: You must provide training to your California employees:
Ensure your harassment training is updated to address the content requirements of California law.
Clear Law Institute offers online sexual harassment training that is compliant with California’s one-hour employee and two-hour supervisor training requirements
Ensure your harassment training meets the California “interactive” requirement. If using online training, determine who will answer questions submitted by users.
Employees and supervisors who take Clear Law Institute’s online sexual harassment training can ask questions and have those questions answered within one business day by Clear Law Institute’s compliance team.
Step 2: Confirm that you are meeting the California policy, poster, and brochure requirements:
Review your discrimination and harassment prevention policy to ensure that it complies with the specific content requirements set forth under California law and that you are distributing it. as required.
Confirm that you have posted the most current required harassment-related workplace posters.
Confirm that you are distributing the most current required sexual harassment fact sheet/brochure.
Step 3: Review your arbitration, NDA, and settlement agreement templates to ensure that they do not contain any non-disparagement or release of claims provisions prohibited by California law.
Where can I learn more?
Clear Law Institute ensures our online training is legally accurate and up-to-date by regularly monitoring federal and state laws and making necessary training modifications. Clear Law Institute’s online course Positive Workplace is used by more than 1,000 employers across the nation, including several Fortune 500 companies. Learn more about Positive Workplace and view a FREE Course Demo.
About the Author
Michael Johnson, CEO of Clear Law Institute, is a former U.S. Department of Justice attorney who brought one of DOJ’s first “pattern or practice” sexual harassment cases. He provides training and consulting on harassment prevention and investigations to organizations around the world, including the EEOC, the United Nations, and Google. He is a graduate of Duke University and Harvard Law School.