Since 2005 the law requires training to prevent not only sexual harassment, but all forms of harassment, discrimination and retaliation. Abusive conduct prevention was added in 2014.
What are the new CA Requirements for 2018?
Beginning on January 1, 2018, the harassment prevention training required under California law must include education about gender identity, gender expression, and sexual orientation as protected characteristics. (SB 396) The training must include examples of harassment based on those characteristics, and must be presented by a trainer with expertise in the area.
California regulations, updated in 2017, (2 CCR §11030) define “gender identity”, “gender expression” and “transgender” as:
• “Gender expression” means a person’s gender-related appearance or behavior;
• “Gender identity” means each person’s internal understanding of their gender, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.
• “Transgender” is a general term that refers to a person whose gender identity differs from the person’s sex assigned at birth.
These characteristics are all independent, as is sexual orientation. For instance, Pat has (1) the sex/gender of male, which was assigned at birth, (2) the gender identity of female, which makes her transgender, (3) the gender expression of feminine, and (4) is a lesbian, since she prefers women as sexual partners. Pat may change gender identity, gender expression, and sexual orientation throughout life.
What are the required subjects that a California Harassment Compliance Training must cover?
The regulations require that the learning objectives of the training shall be:
To assist California employers in changing or modifying workplace behaviors that create or contribute to harassment and abusive conduct; and
To develop, foster and encourage a set of values in supervisory employees that will assist them in preventing and effectively responding to incidents of harassment. Specifically, training must cover the following:
Harassment, discrimination, and retaliation
Definition of abusive conduct
Gender identity, gender expression, and sexual orientation as protected characteristics
Remedies for victims of harassment
Strategies to prevent harassment and abusive conduct
The effects of harassment and abusive conduct on targeted employees, coworkers, and employers
Practical examples and factual scenarios taken from case law, news and media accounts
Obligation to investigate
Limited confidentiality of the complaint process.
Resources for targeted employees
What to do if personally accused of harassment
What are the requirements for format and delivery of California Harassment Compliance Training?
Although classroom training is most effective, the regulations allow for e-learning, both by webinars and self-study methods. This training must meet all the subject requirements listed above. And in addition:
All training formats must provide a way for students to ask questions and receive an answer.
Self-study and e-learning programs must provide a link or directions on how to contact a trainer to answer questions. The trainer must answer the question within two business days. The trainer must be qualified as stated below, but in addition, the trainer must be able to provide guidance and assistance on harassment issues under the employer’s policy. Therefore, your own HR or Legal Department should be answering these questions, although the trainer may draft an initial response and may have templates for frequently asked questions. Webinars must either provide an opportunity to ask questions and have them answered during the program, or a link as above.
Training must be interactive.
All programs must include questions that assess learning, skill-building activities that assess the supervisor’s application and understanding of content learned, and numerous hypothetical scenarios, each with one or more discussion questions so that supervisors remain engaged in the training. Straight lecture or stand-alone video is not enough. Nor is a web-based or e-learning program considered interactive if it merely requires the supervisor to click “next” to get a new page view. Participants also must be able to ask questions during the training, as outlined above.
All training formats must take no less than two hours to complete.
Self-study programs must actually take each participant at least two hours to complete, although the two hours can be broken into segments if desired. The two hours can and should include training on all forms of harassment, discrimination and retaliation, not just sexual harassment.
All training must document participation continuously to verify total learning time.
Webinars must document that each supervisor attended the entire training and actively participated. The regulations require employers to “document and demonstrate that each supervisor who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated with the training’s interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities.” That is why the webinar or e-learning must be structured to have continuous interaction.
What are the required qualifications for California Harassment Compliance Training instructors?
Harassment compliance training instructors must be:
An attorney whose practice includes California or federal employment law.
“Human Resource Professionals” or “Harassment Prevention Consultants” with a minimum of two or more years of practical experience in handling discrimination, retaliation and sexual harassment matters.
A credited professors or instructors in law schools, colleges or universities who have either 20 instruction hours or two or more years of experience teaching about California or federal employment law.
Able to train about and answer questions regarding the required subjects for the training including:
How to recognize unlawful harassment discrimination and retaliation under California and federal law
What to do when harassing behavior occurs in the workplace
How to make harassment complaints
How to handle a harassment complaint
Why and how employers investigate complaints
What is retaliation and how to prevent it
Elements of an effective anti-harassment policy
How harassment affects employees, co-workers, harassers and employers
Do out of state workers, contractors, seasonal and temporary employees count toward the 50?
Employees include full time, part time, and temporary workers. “Contractors” are people who work each working day in 20 consecutive weeks in the current calendar year or preceding calendar year.
Out of state employees
Employers are required to provide this training if they have 50 employees anywhere, not just in California. The prior regulations required even a large company with a single sales person in California to train the supervisor of that person, even if the supervisor was not in California. This has changed, so that only supervisors in California must receive the training.
The training must meet the requirements of California law – a course in federal harassment law will not meet California requirements.
If your company has seasonal employees, you are deemed to have 50 or more employees if you employ “fifty or more employees or contractors for each working day in any twenty consecutive weeks in the current calendar year or preceding calendar year.”
Are new businesses required to provide this training?
New businesses and businesses that expand to 50 employees must provide training within six months of their eligibility and thereafter every two years.
When do I have to train new supervisors?
New supervisors must be trained within six months of assuming their positions, and once every two years thereafter. The regulations allow an employer to carry over a supervisor’s training from a previous employer. However, if the previous employer’s training does not meet the legal requirements, the new employer will be held liable. Therefore, it is recommended that all new supervisors receive the training. If the carry over provision is used, the new supervisor must be provided a copy of the employer’s harassment policy and be required to read and acknowledge it within the six-month time frame.
Do I have to keep track of all the training we do?
Employers must keep records including each supervisor’s name, date of training, type of training, and the name of the training provider. These records must be kept for at least two years.
The law requires re-training supervisors every two years. Employers may monitor the training deadlines for each supervisor or use a “training year” method where organizations may select a specific “training year” where all supervisors will be trained. The employer needs to retrain all supervisors by the end of the next “training year”, which is two years later.
What do I need to do today to ensure our company is in compliance with CA regulations every two years?
Start thinking today about blocking out the dates in your next training year by which all training must be completed. Avoid seasonal rushes, quarter-ends, popular vacation periods, holidays and other times when training is difficult to schedule.
Determine whether last year’s solution meets your new needs. For example, if you purchased e-learning or video, it must be updated to take into account new case law. Plus, keep in mind that people learn more if you mix up the training methods. Try a webinar one year, e-learning another, and live training for those supervisors (and you know who they are) who need a little extra help.
Research new ways to meet your training requirements. Start by going here.
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Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.