Sexual Harassment Training California

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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 to provide sexual harassment training every two years to all employees. The duration of the training must be at least 1-hour for non-supervisory employees and at least 2-hours for supervisory employees. In addition, the new law specifies certain content that must be included in the training. Employers must provide sexual harassment training under the new law by January 1, 2021.

This is a change from current California law, which requires 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 new California training requirements.

What employers are covered under California’s sexual harassment prevention training law?

Employers with five or more employees are required to provide sexual harassment prevention training to employees in California. This includes any employer who regularly receives services of five or more persons pursuant to a contract.

The employees do not need to work in the same location and not all of the employees need to work or reside in California. For example, if the employer has five employees in total, and only two employees work in California, the employer must provide sexual harassment training to the two employees who work in California, even if one or more of those employees do not reside in California.

When is the deadline to provide sexual harassment training to all employees?

Under the new law, covered employers must provide sexual harassment training by January 1, 2021.

Originally, the legislation required all employees to be trained by January 1, 2020. However, California enacted additional legislation (SB 778) in 2019 extending the training deadline to January 1, 2021.

Are employees required to be retrained?

All employees must be retrained once every two years

Employers that provided 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).

When must new employees and new supervisors be trained?

Employers with 50 or more employees continue to have an obligation under current law to train all new supervisors within six months of assuming the position.

Beginning on January 1, 2021, sexual harassment training must be provided within six (6) months of hire for new non-supervisory employees, and supervisors must be trained within six (6) months of assuming a supervisory position.

A supervisor is anyone with the authority to hire, fire, assign, transfer, discipline, or reward other employees. A supervisor is also someone with the authority to effectively recommend (but not necessarily take) 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. Employers are not required to train independent contractors, volunteers, or unpaid interns. Nevertheless, prudent employers provide training to these persons to ensure a safe work environment for everyone in the workplace.

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.

Are employers required to train temporary and seasonal employees?

Employers must provide training to any employee who works less than six (6) months, including temporary and seasonal employees.

The training must be provided within (1) thirty calendar days from the first-day worked; or (2) 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?

The training must be 1-hour for non-supervisory employees and 2-hours for supervisory employees.

Can the training be completed individually online?

The training may be completed individually online or as part of a group presentation.

Also, the training need not be completed all at once, and can 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 include 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?

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 bystanders with the skills and confidence to intervene, and the resources for support if they are unable to intervene.

Clear Law Institute’s online training Positive Workplace covers sexual harassment and all forms of harassment, discrimination, and retaliation, including bystander intervention, workplace civility, and bullying.

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 either:

  • 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.
  • 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 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

How is “Interactive, E-learning” training defined?

“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 (described above) 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 law states that the learning objectives of the training must be designed to:

  • Assist employers in adapting 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 who complete the training that will assist them in helping to prevent, respond, and address harassing behavior in the workplace.

Has the state developed training?

The Department of Fair Employment and Housing (DFEH) has developed an online training course on preventing sexual harassment and abusive conduct in the workplace for employees. The DFEH states that it will release training for supervisory employees in the next few months. 

However, unlike Clear Law Institute’s online sexual harassment training, the DFEH online course does not save an employee’s progress. Thus, should the training be refreshed or reloaded at any time, the employee may lose any progress they have made towards course completion. Clear Law Institute’s training contains a number of book-marked sections so that employees are not required to complete the training in one sitting. If an employee needs to exit the course for any reason, their place will be saved. 

The DFEH training also provides the option to obtain a certificate of completion. The employee can save, print, or take a photo or screenshot of the certificate. Thus, the employer must rely on the employee to track their own course completion and provide the certificate to the employer internally.

Clear Law Institute’s training allows employers to track completion electronically in its Learning Management System (LMS), greatly reducing the burden of tracking employee completion internally.

Are employers required to use DFEH training?

No. Employers can provide the training developed by DFEH or provide their own training consistent with the minimum training standards. Notably, however, the DFEH has not yet developed online harassment training for supervisors.

To ensure employers can provide more comprehensive training, DFEH states that the training it developed establishes 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 to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.”

Many employers turn to expert providers of sexual harassment training such as Clear Law Institute’s online sexual harassment training to:

  • provide comprehensive, illustrative, and informative instruction 
  • assure training is compliant with California requirements and the laws of all 50 states
  • ensure training provides legally accurate information and guidance
  • present employees with “best-in-class” instruction using cutting-edge instructional design principles to boost employee comprehension
  • provide accurate answers to employee questions as required by California’s “interactivity” requirement 
  • efficiently track employee completion of the training each year by using a modern Learning Management System (LMS) as opposed to collecting and tracking certificates internally

Additionally, Clear Law Institute is the only provider we are aware of that provides end-user technical support and handles technical support calls from employers.

Do employees or supervisors who have been trained at another employer need to retake the training?

If an employee or supervisor took compliant training within the past two years, they are not required to retake the training. Although, within six (6) months of hire or promotion, the new employee must be given the employer’s anti-harassment policy, read it, and sign an acknowledgment form. Because employers must ensure the training employees received from their previous employer 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.

When do employees need to be retrained?

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, employees must be retrained no later than December 31, 2022.

For new employees and supervisors who receive training within six months of hire/promotion, the employer should include them in the next group training year, even if that is less than two years later. An employer may not extend the training year for the new employees and new supervisors beyond the two-year training year.

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

This documentation must be maintained by the employer 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 certain harassment training laws, such as those in California. Clear Law Institute’s over 800 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 related updates under California law?

Sexual Harassment Prevention Posting Requirement

Employers must post California’s Sexual Harassment Prevention poster in a prominent and accessible location in the workplace.

Sexual Harassment Prevention Brochure Must be Distributed to Employees

Employers must also distribute California’s Sexual Harassment Prevention brochure to all employees. The employer may choose the manner of distribution as long as the method chosen ensures all employees receive the brochure. 

In the alternative, an employer may develop an equivalent brochure, which must contain the following information:

  • the definition and illegality of sexual harassment
  • 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

Employer Liability for Harassment by Non-Employees 

Effective January 1, 2019, SB 1300 expands harassment protection and liability under the Fair Employment and Housing Act (FEHA). Under this new law, employers can 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.

Non-Disparagement & Release of Claims 

Effective January 2, 2019, SB 1300 prohibits an employer, in exchange for a raise or bonus, or as a condition of continued employment, from requiring the employee to execute a release of any claim or right under FEHA or to sign a non-disparagement agreement that would deny the employee the right to disclose information about unlawful acts in the workplace. Any such agreement is deemed void as contrary to public policy.

Liability for a Single Incident of Harassment 

Effective January 1, 2019, SB 1300 rejects 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.

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.”

Non-Disclosure Agreements Banned  

SB 820 prohibits and voids non-disclosure clauses in settlement agreements entered into on or after January 1, 2019, involving sexual assault or harassment, sex discrimination, or retaliation. 

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:

  • Determine if California sexual harassment training 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 the answer is yes to either question: Do you have any employee and/or supervisor working in California that must be trained?
    • Review your policies, arbitration agreements, and NDAs
      • Review and update harassment policies, arbitration agreements, and settlement agreements to comply with California law
      • Review any NDA currently in effect 
    • Training
      • Ensure harassment training is updated to address the content requirements of California laws
      • 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
      • Train all employees and supervisors before January 1, 2021.

Where can I learn more?

Clear Law Institute ensures 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 hundreds of 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. Michael is a graduate of Duke University and Harvard Law School. 

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