California law requires sexual harassment training for all employees
California state law requires employers with at least five employees to provide sexual harassment training every two years for all employees located in California. Since 2005, California law AB 1825 has required employers with 50 or more employees to provide sexual harassment training for supervisors in California. Senate Bill 1343, which was signed into law on September 30, 2018, expanded the requirement to require employers with at least five employees to train all employees. SB 1343 also provides guidance on the content and length of the training that must be provided, as detailed below.
When is the deadline to provide sexual harassment training to all employees in California?
SB 1343 initially set a deadline for all covered employees to be trained by January 1, 2020. However, on August 30, 2019, California enacted SB 778, which extended the initial deadline to train all employees by one year until January 1, 2021. Employers must train all employees by that date and then every two years therefter. Employers that provide training in 2019 are “not required to provide refresher training and education again until two years thereafter.” According to the California Department of Fair Employment & Housing (DFEH), an employer that trains its employees in 2019 must retrain two years later (before January 1, 2022).
By when must new employees and supervisors be trained?
Training must be provided within six months of hire for new employees, and supervisors must be trained within six months of obtaining a supervisory position.
Which employers are subject to the harassment training requirements?
Senate Bill 1343 defines an employer who must comply with these training requirements as “any person regularly employing five or more persons, or regularly receiving the services of five or more persons providing services pursuant to a contract, or any person acting an agent of an employer, directly, or indirectly, the state, or any political or civil subdivision of the state, and cities.”
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Who must be trained?
All employees and supervisors based in California must be trained.
What are the requirements for temporary and seasonal employees?
Temporary and seasonal employees (any employee who works less than six months) are also included in the sexual harassment training requirement, and employers must provide training to them within 100 hours of working or 30 calendar days after hire date, whichever comes first. Additionally, migrant and seasonal agricultural workers must receive the same training as non-supervisory employees. Temporary employees, as employed by a temporary services employer to perform services for a client, must receive training from the temporary services employer, not the client.
How long must the training be?
As mandated by AB 1825, supervisors must continue to receive “at least two hours of classroom or other effective interactive training and education regarding sexual harassment” for supervisors. SB 1343 requires that training for non-supervisors be one hour in length.
For both supervisors and employees, training may be completed individually online, or as part of a group presentation. Additionally, the law specifies that this training may be completed in shorter segments, and not all at once, as long as the total hour requirement is met.
What must be included in the content of the training?
Senate Bill 1343 incorporates and adds to the training content requirements of previous California laws, such as the AB 1825 sexual harassment training law, the AB 2053 anti-bullying training law, and the SB 396 gender identity, gender expression, and sexual orientation harassment training law. Now employers must ensure that the training provided to California-based employees covers, among other things:
- Federal and state statutory provisions concerning the prohibition against and prevention of sexual harassment
- Remedies available to victims of sexual harassment in employment
- Practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation; and
- Prevention of abusive conduct for both employees and supervisors
Additionally, Senate Bill 1300 encourages employers to include bystander intervention training as part of the training. Specifically, employers are encouraged to provide all employees with bystander intervention training that provides practical guidance on how to enable bystanders to recognize and take action when they observe problematic behaviors. This training is in an effort to provide bystanders with the skills and confidence to intervene, or the resources to support if they are unable to intervene. Clear Law Institute’s online training, entitled Positive Workplace, covers not just sexual harassment, but all forms of harassment, discrimination, and retaliation. The training also addresses bystander intervention, workplace civility, and bullying.
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Who can present the training?
Senate Bill 1343 emphasizes that the training “shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.” Unlike most training providers, Clear Law Institute has in-house legal expertise that ensures that the training is legally accurate when produced and kept up-to-date with any changes in the laws.
How is “interactive” training defined?
“Interactive” training is defined in Senate Bill 1343 as 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.”
Also, the training must allow employees to ask questions and have those questions answered. If the employee is taking an online course, previous guidance implementing AB 1825 indicated that questions must be answered within two business days. Clear Law Institute answers user questions within one business day as part of its online sexual harassment training.
Will the State develop training?
Senate Bill 1343 has indicated that the Department of Fair Employment and Housing will, at some point, develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplace and post it on their website. The Department is also required to “make existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers in specified alternate languages on the department’s Internet Web site.” It is not stated when these will be available.
Per the bill’s requirements, the Department will provide a method for employees who have completed the training to save electronically and print the certificate of completion. [Notably, Clear Law Institute’s online sexual harassment training allows employers to track completion electronically in its Learning Management System, greatly reducing the burden of tracking employee completion internally.]
Does my organization have to use the Department’s training?
Employers can provide the Department’s training, once released, or develop their own training consistent with the minimum training standards. Indeed, the bill explicitly states that the Department’s training is intended to establish a “minimum threshold, and should not discourage or relieve any employer from providing longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.”
Many employers will likely turn to expert providers of sexual harassment training such as Clear Law Institute:
- To provide comprehensive instruction on the topic.
- To ensure that the training complies with all 50 states’ requirements, not just the requirements of California.
- To ensure that the training provides legally accurate guidance. If an employer were to provide in-person training following California’s minimum training, for example, the trainer may not have the expertise to facilitate the training and accurately answer questions.
- To provide employees with “best-in-class” instruction that utilizes cutting-edge instructional design principles to help improve employees’ understanding of the principles taught.
- To be able to answer questions from users (as required to meet the “interactivity” requirement). Users of Clear Law’s online sexual harassment training can ask questions and have those questions answered within one business day by a Clear Law Institute lawyer.
- To be able to efficiently track who has and who has not completed the training each year, which can be handled by a modern Learning Management System, instead of having to collect and track certificates.
- To have their online training provider handle all technical support calls from their employees.
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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 certain harassment training laws, such as those in California. Clear Law Institute’s hundreds of clients can sleep well knowing that we monitor laws around the country to ensure that our training stays up-to-date with changes in the law. Indeed, we have updated our harassment course numerous times 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.
What other updates should my organization be aware of?
Poster Requirement in the Workplace (Senate Bill 1343)
Employers are required to post a poster detailing discrimination in the workplace and the illegality of sexual harassment in a “prominent and accessible location in the workplace.” This poster must also include a reference to transgender rights. The CA Department of Fair Employment and Housing will develop this poster and will provide one copy to an employer or member of the public, upon request. This poster can be mailed if the request includes a self-addressed envelope with postage affixed.
Information Sheet Distributed to Employees (Senate Bill 1343)
The Department will make available to employers an information sheet on sexual harassment, to be reproduced and distributed to employees “in a manner that ensures distribution to each employee, such as including the information sheet with an employee’s pay”. One copy will be provided to the employer or member of the public upon request and can be mailed if the request includes a self-addressed envelope with postage affixed. Employers must distribute this information sheet to all employees unless an equivalent information sheet contains at minimum the following:
- Definition and illegality of sexual harassment
- Description of sexual harassment, utilizing examples
- Internal employer complaint process that is available to employees
- Legal remedies and complaint process available through the CA Department of Fair Employment and Housing
- Directions on how to contact the CA Department of Fair Employment and Housing
- Protection against retaliation
- Link to, or website, for the sexual harassment online training course as developed by the Department
Employer Liability for Acts of Harassment by Non-Employees (Senate Bill 1300)
Effective January 1, 2019, Senate Bill 1300 expanded harassment protection and liability under the Fair Employment and Housing Act by mandating that an employer may now be responsible for any acts of harassment (not just sexual harassment, as previously defined) by non-employees, against employees and other non-employees, including interns, volunteers, and contractors.
Release or Non-Disparagement Agreements (Senate Bill 1300)
Effective January 1, 2019, Senate Bill 1300 made it unlawful for employers to require an employee to sign a release or non-disparagement agreement or document that denies the employee’s right to file and pursue civil action or disclose information about all unlawful acts in the workplace, including all forms of harassment.
Liability for a Single Incident of Harassment (Senate Bill 1300)
Senate Bill 1300 rejected the former “stray mark” doctrine previously determining what conduct may be sufficiently severe or pervasive to constitute a violation [opinion of the U.S. Court of Appeals for the Ninth Circuit in Brooks v. City of San Mateo, 229 F.3d 917 (2000)]. Instead, establishing that one can be held liable for even one comment as the bill states 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.”
NDA’s Prohibited in Harassment Claims (Senate Bill 820)
For settlement agreements entered into on or after January 1, 2019, Senate Bill 820 prohibits and voids non-disclosure provisions in sexual harassment, workplace harassment, or sex discrimination claims. Senate Bill 820 provides, however, that a claimant may request to shield their identity (including facts that could reveal their identity) and preclude the disclosure of the amount paid in settlement, if the claimant has requested anonymity and the opposing party is not a public official or government agency.
What should employers do now?
Employers should take the following steps:
- Determine if the California laws apply to your organization.
- Do you have 5 or more employees?
- Do you regularly receive services via contract from 5 or more persons?
- If answering yes to either questions: Do you have employees and/or supervisors working in California that should be trained?
- Review your policies, arbitration agreements, and NDA’s.
- Update your existing harassment policy to meet the requirements of the updated California laws.
- Review your current NDA’s with employees.
- Ensure that your harassment training is updated to address the new content requirements of the California laws. [Clear Law Institute offers online sexual harassment training that covers the one-hour employee and two-hour supervisor training requirements.]
- If using online training, determine who will answer questions submitted by users. [Users of Clear Law’s online sexual harassment training can ask questions and have those questions answered within one business days by Clear Law or a client official.]
- Train all covered employees and supervisors before January 1, 2021.
Where can I learn more?
Clear Law Institute continually monitors updates to federal and state laws to ensure that its online training is legally accurate and up-to-date. Clear Law Institute’s online course, Positive Workplace: Preventing Harassment at Work, is used by hundreds of employers across the nation, including several Fortune 500 companies. Learn more about Positive Workplace and view a free course demo.