Have You Completed Your Mandatory Sexual Harassment Training?

As we blogged about previously, a new law came into effect January 1, 2019 requiring California employers with five or more employees to provide sexual harassment and abusive conduct prevention training for all employees by January 1, 2020.  Prior to this new law, only employers with 50 or more employees were required to provide at least two hours of sexual harassment and abusive conduct prevention training to all supervisors.  But now, the training requirement has been extended significantly.  Also, the regulations are more specific regarding the duration and contents of the trainings, as well as who is qualified as a trainer.

Here are a few reminders so all employers can ensure that they are in compliance by December 31, 2019:

Employers with 5 or more employees must provide sexual harassment and abusive conduct prevention training to all employees by January 1, 2020.

SB 1343 passed in 2018 and became the law in California on January 1, 2019.  Employers with 5 or more employees – including temporary or seasonal employees – must provide a minimum of 2 hours of sexual harassment prevention training to all supervisory employees, and at least one hour of sexual harassment prevention training to all non-supervisory employees.  These trainings must be completed no later than January 1, 2020, and then conducted once every 2 years thereafter.

Under the new law, the Department of Fair Employment and Housing (“DFEH”) is required to develop or obtain, and post on the DFEH website, 1-hour and 2-hour online training courses on sexual harassment and abusive conduct prevention.  The law further requires the DFEH to make available in alternate languages on its website the existing informational posters, fact sheets, and online training courses in sexual harassment prevention, for both employers and members of the public.  As of today, the DFEH has not yet posted the online trainings to their website, but it has said it anticipates these will be available by late 2019.  In the meantime, the DFEH is offering a sexual harassment and abusive conduct prevention toolkit, including a sample sexual harassment and abusive conduct prevention training.  Employers can use the sample DFEH materials — delivered by an eligible, qualified trainer — to fulfill their trainings required by the new law.

Employers must have a compliant anti-harassment policy.

California law requires employers to have a harassment, discrimination, and retaliation prevention policy of their own, developed and distributed to all employees.  To be compliant, the employer’s policy must:

1. Be in writing;
2. List all currently protected categories under the Fair Employment & Housing Act (“FEHA”);
3. Indicate that the law prohibits coworkers or third parties, as well as supervisors or managers, with whom an employee comes in contact through his/her work from engaging in conduct prohibited by FEHA;
4. Create a complaint process to make sure that complaints receive (1) an employer designation of confidentiality, to the extent possible; (2) a timely response; (3) impartial and timely investigations by qualified personnel; (4) documentation and tracking for reasonable progress; (5) appropriate options for remedial action and resolution; and (6) timely closure;
5. Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including but not limited to the following: (1) direct communication, either in writing or orally, with a designated company representative such as an HR manager, EEO officer, or other supervisor; and/or (2) a complaint hotline; and/or (3) access to an ombudsman; and/or (4) identification of the DFEH and US EEOC as additional avenues for employees to lodge complaints.
6. Instruct supervisors to report complaints of misconduct to a designated company representative, such as an HR Manager, so the company can attempt to resolve the claim internally. [Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of the regulations.]
7. Indicate that when an employer receives allegations of misconduct, the employer will conduct a fair, timely, and thorough investigation that provides all parties with appropriate due process and reaches reasonable conclusions based on the evidence gathered;
8. State that confidentiality will be maintained by the employer to the extent possible, but does not indicate that the investigation will be completely confidential;
9. Indicate that if at conclusion of the investigation, misconduct is found, appropriate remedial measures will be taken; and
10. Make clear that employees will not be retaliated against as a result of either bringing a complaint or participating in a workplace investigation.

Additionally, employers are required to distribute the pamphlet Sexual Harassment Is Forbidden by Law (DFEH-185) to all employees.  As part of best practices, employers should also regularly discuss at meetings with employees the company’s sexual harassment prevention policy, and remind them of the complaint procedure.  Employers should document these additional steps, to demonstrate that the company is serious about preventing harassment, discrimination and retaliation, and that the company is taking affirmative steps to protect its employees

The training must review certain topics.

To comply with California law, the sexual harassment and abusive conduct prevention training to be provided to all employees must cover the following topics:

1. The definition of sexual harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964;
2. Statutes and case-law prohibiting and preventing sexual harassment;
3. Types of conduct that can be sexual harassment;
4. Remedies available for victims of sexual harassment;
5. Strategies to prevent sexual harassment;
6. Supervisors’ obligation to report harassment;
7. Practical examples of harassment;
8. The limited confidentiality of the complaint process;
9. Resources for victims of sexual harassment, including to whom they should report;
10. How employers must correct harassing behavior;
11. What to do if a supervisor is accused of harassment;
12. The elements of an effective anti-harassment policy and how to use it;
13. The definition of “abusive conduct” under Government Code section 12950.1, subdivision (g)(2); and
14. Discussion of various forms of harassment based on gender identity, gender expression, and sexual orientation, which shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.

Trainers must be qualified.

Finally, under the new law, the person conducting the sexual harassment and abusive conduct prevention training must have certain qualifications.  She or he must be one of the following:

1. An attorney admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the Federal Civil Rights Act of 1964; or
2. A Human resource professional or harassment prevention consultant working as an employee or independent contractor with a minimum of two or more years of practical experience in one or more of the following: (a) designing or conducting discrimination, retaliation and sexual harassment prevention training; (b) responding to sexual harassment complaints or other discrimination complaints; (c) conducting investigations of sexual harassment complaints; or (d) advising employers or employees regarding discrimination, retaliation and sexual harassment prevention; or
3. A professor or instructor in a law school, college or university who has a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the Federal Civil Rights Act of 1964.

Individuals who do not meet one of these three categories of qualifications as a trainer because they lack the requisite years of experience may team teach, either in classroom or online/webinar based trainings, with another qualified trainer who does meet one or more of the three categories above, provided that the qualified trainer supervises such individual(s) and that the qualified trainer is available throughout the training to answer questions from those attending the training.

If your company needs help becoming compliant with the new law regarding trainings in sexual harassment and abusive conduct prevention by the January 1, 2020 deadline, feel free to contact us.