What are an employer's obligations in California to provide sexual-harassment training?

All  employers doing business in California with five or more employees, contractors, volunteers or unpaid interns must provide training to its supervisory and nonsupervisory employees on sexual harassment and abusive conduct prevention. Every two years, nonsupervisory employees must receive at least one hour of training and supervisory employees must receive at least two hours of training. All new supervisory employees must receive training within six months of assuming a supervisory position.  

Seasonal and temporary employees or any employee who is hired to work for less than six months must be provided training within 30 calendar days after the hire date or within the first 100 hours worked, whichever occurs first. Temporary workers employed by a temporary agency must be trained by the temporary agency, not the client.

In addition to mandatory training, employees must be provided with a copy of the California Civil Rights Department's Sexual Harassment Fact Sheet or an equivalent document.

When counting employees or contractors, the employees/contractors need not work at the same location or all work or reside in California. However, only supervisors and employees located within the state of California are required by law to receive the training.  

Qualified trainers

California final regulations on sexual-harassment training and education provide that qualified trainers can be attorneys, professors or instructors, HR professionals or harassment-prevention consultants who meet the following criteria:

• Attorneys must have been admitted to practice in any jurisdiction in the United States for at least two years and have as part of their practice employment law issues related to Title VII of the federal Civil Rights Act of 1964 and/or the Fair Employment and Housing Act (FEHA).
• Professors and educators must have either a postgraduate degree or a California teaching credential and either 20 hours of instruction or two years of experience teaching employment law under FEHA or Title VII of the federal Civil Rights Act of 1964.
• HR professionals or harassment-prevention consultants working as employees or independent contractors must have a minimum of two years of practical experience in one or more of the following:
• • Designing or conducting discrimination-, retaliation- and sexual-harassment-prevention training.
  • Responding to sexual-harassment complaints or other discrimination complaints.
  • Conducting investigations of sexual-harassment complaints.
  • Advising employers or employees on discrimination, retaliation and sexual-harassment prevention.

Training delivery

Acceptable modes of training include classroom training, e-learning seminars and webinars. Each mode of training must provide an opportunity for the attendee to obtain answers to questions within two business days of the training. E-learning training must include a hyperlink or directions on how to contact a live trainer. Similarly, webinars must give attendees an opportunity to participate and ask questions.

For any training mode, the instruction must include questions that assess learning, skill-building activities that assess the trainee's application and understanding of the content learned, and numerous hypothetical scenarios about harassment, each with discussion questions so that supervisors and employees remain engaged in the training.

Required content

The training content must include:

• The definition of sexual harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964.
• The statutes and case-law prohibiting and preventing sexual harassment.
• The types of conduct that can be sexual harassment.
• The remedies available for victims of sexual harassment.
• Strategies to prevent sexual harassment.
• A statement outlining supervisors' obligation to report harassment
• Practical examples of harassment.
• A disclosure stating the limited confidentiality of the complaint process.
• Resources for victims of sexual harassment, including to whom they should report it.
• An explanation of how employers must correct harassing behavior.
• What to do if a supervisor is personally accused of harassment.
• The elements of an effective anti-harassment policy and how to use it.
• The definition of "abusive conduct" under Government Code section 12950.1, subdivision (g)(2).
• The definition of harassment based on gender identity, gender expression and sexual orientation, and practical examples inclusive of harassment based on gender identity, gender expression and sexual orientation.

The training may also address other forms of harassment and discrimination.

Record keeping

To track compliance, employers must keep documentation of required harassment training for a minimum of two years, including the following:

• Names of employees who were trained.
• Date of training.
• Training sign-in sheets.
• Certificates of attendance or completion.
• Type of training.
• All written or recorded training materials.
• Name of the training provider.

Portability

Employers may choose to credit the training provided by a previous or different employer to a new employee. This eliminates the new employer's obligation to provide new employees a first training within six months. However, within six months of the new supervisor's or employee's hiring, the new employer must do the following:

• Provide the new individual with the company's anti-harassment policy.
• Require the new hire to read and sign the policy.
• Ensure that retraining will occur no later than two years from the date of the new hire's prior training.

Despite the flexibility allowed by portability, as a best practice, employers should never wait six months to provide a new hire with the anti-harassment policy. Also, because the burden is on the new employer to establish that the prior training was legally compliant with AB 1825, a safer approach is for the new employer to provide its own training to new employees.

In the context of business transfers, mergers, acquisitions, reorganizations and other situations, the portability option can be a simple and effective process to ensure compliance with training requirements without having to retrain the entire workforce.