Sexual Harassment Prevention (AB 1825)
Regulation Requirements Q&A
With the many twists and turns that took place during the drafting of the landmark AB 1825 legislation, it’s important that human resources professionals, legal counsel and business owners are familiar with its regulatory requirements. Thorough knowledge about the requirements will ensure appropriate legal compliance. Also, for multi-state organizations that may be required to provide anti-harassment training in other states such as Connecticut and Maine, familiarity with the California regulations will assit in achieving nationwide compliance.
Questions
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Answers
Which Organizations Are Covered?
Employers engaged in business in California who employ 50 or more employees (including contractors and agents); the state of California, counties and political subdivisions (including governmental and quasi-governmental entities). To be counted as an “employee,” the person does not need to be located in California.
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Who Must be Trained?
Supervisors who are located in California must be trained. Importantly, the regulations state that including someone in the training does not create an inference that the person is an employee or contractor, or a supervisor.
How Often Must Supervisors Be Trained?
- Supervisors must be trained at least once every two years, tracked by either the “individual” tracking method or “training year” tracking. Specific definitions of those two methods are included in the regulations.
- Newly hired supervisors and people promoted into supervisory positions must receive the training within six months of assuming the supervisory position. If the person received compliant training in the two years before assuming the new role, the employer only needs to give the person a copy of the organization’s harassment policy and require them to read it and acknowledge receipt of it. After that, the person needs to be trained once every two years.
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How Long is the Training?
Classroom and webinar training must be at least two hours. For E-learning, the program must take no less than two hours to complete. The two hour requirement does not include breaks.
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Who Can Provide the Training?
- Trainers must have the training and experience to train on specified subjects (discussed further below). Instructional designers must develop the training based on materials provided by qualified trainers.
- The regulations are very specific about who is qualified to be a trainer and provide criteria for determining the qualifications of attorneys, HR professionals, training consultants, and professors and instructors who are permitted to create content and deliver the training.
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What is the Required Content of the Training?
- Regardless of the training method, the content must include questions that assess learning, skill-building activities to measure understanding and application, and hypotheticals with questions to keep the supervisors engaged.
- The required subject areas are:
- Definitions of unlawful sexual harassment under California state and federal law.
- California state and federal statutory and case law principles about the prohibition against and prevention of sexual harassment, discrimination and retaliation in employment.
- The types of conduct that constitute sexual harassment.
- The remedies for sexual harassment.
- Strategies to prevent sexual harassment.
- “Practical examples,” such as factual scenarios taken from case law, news and media accounts, hypotheticals based on workplace situations and other sources which illustrate sexual harassment, discrimination and retaliation using training modalities such as role plays, case studies and group discussions.
- The limited confidentiality of the complaint process.
- Resources for victims of unlawful sexual harassment, such as to whom they should report any alleged sexual harassment.
- The employer’s obligation to conduct an effective workplace investigation of a harassment complaint.
- Training on what to do if the supervisor is personally accused of harassment.
The essential elements of an anti-harassment policy and how to utilize it if a harassment complaint is filed. Either the employer’s policy or a sample policy must be provided and regardless of whether the employer’s policy is used as part of the training. Supervisors must be given a copy of the organizations’ anti-harassment policy and required to read and to acknowledge receipt of the policy.
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How Do Supervisors Ask Questions in e-Learning Courses?
E-learning courses must provide links to a trainer or directions about how to contact a trainer for questions. A trainer must be available to answer questions and provide other guidance about the training within a reasonable time (no more than 2 days after a question is asked)
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What Documentation are Employers Required to Keep?
- The name of the supervisor who was trained, the date of the training, the type of training and the name of the training provider.
- The records must be retained for at least two years.
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What Are The Penalties for Failing to Provide the Training?
- The regulations state that the FEHC is permitted to enter an order of non-compliance against the employer and can require compliance within 60 days of the order.
- In addition to the penalties in the regulations, your organization should consider the possible negative ramifications in litigatio n that may be brought against your organization by current or former employees who claim you did not provide the appropriate training.