Thousands of employers choose Clear Law Institute’s sexual harassment training.
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.
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.
The initial training deadline, January 1, 2021, has passed.
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.
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).)
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.
Yes. The training must be one hour for nonsupervisory employees and two hours for supervisory employees.
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.
California employers must ensure the training includes information and practical guidance on the following:
The training must also include the employer’s anti-harassment policy and employees must read and acknowledge receipt of the policy.
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.
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:
“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.
California regulations state that the learning objectives of the training must be designed to:
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.
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.
Employers must keep documentation relating to employee training, including, but not limited, to:
The employer must maintain this documentation for at least two years.
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.
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.
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:
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.
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.
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:
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.
