New CA Law for Supervisors Requires Sexual Harassment Training Every Two Years
October 28, 2004
By George Ramos
On September 30, 2004, California Governor Schwarzenegger signed AB 1825, a bill that requires all California employers with 50 employees or more to provide sexual harassment training to supervisors every two years. According to the new law, California Government Code Section - 12950.1 which is part of the Fair Employment and Housing Act "FEHA", employers that qualify under the new statute must provide in the every two year rule at least two hours of sexual harassment training to supervisory employees. Resultantly, all employers that do business in California should evaluate whether they are subject to qualify for the new training requirement and, if so, what and when they must do to fully comply. Be cautioned however, that the new law stipulates independent contractors and temporary service employees must be included when calculating the total number of employees a company has. This will ultimately affect even the relatively small employer. Additionally, the statute further applies to out-of-state employers that employ 50 or more employees in total, including those temporary and independent contractors.
To start with, employers must provide the two hours of training by January 1, 2006 and henceforth every two years thereafter. An employer is exempt from this requirement, however, if it provided this specific type of training after January 1, 2003. However keep in mind, all new supervisory type employees that are employed as of July 1, 2005 must receive their initial training within the first six months.
FEHA defines the term "supervisor" in very general terms which translates to, any employee that uses his or her self-determining judgment to hire, transfer to another position or location, suspend, promote, reward or discharge another employee is subject to the new training requirement. Most significant is the employee who merely recommends such changes to occur is categorized as supervisor.
The new law mandates that the training include "information and practical guidance regarding the federal and state statutory provisions concerning the harassment and the remedies available to victims of sexual harassment in employment." The training must also be "interactive." Therefore the trainers must interactively engage supervisory employees with role-plays, and question and answer periods and that showing a video may not be allowed as the only tool of training if allowed at all. Employers should be careful when evaluating the credentials of any trainers they consider retaining for this new requirement purpose. The new statute states the trainers or educators must have knowledge and expertise in all areas of prevention of the harassment, discrimination, and any retaliation.
More important, if after January 1, 2006, if an employer is subject to and falls into the required 50 employees and fails to act in accordance with the training requirement, the DFEH may officially order it to be completed. In addition, while the failure to provide training does not result in sexual harassment liability in and of itself, it may expose an employer to liability under FEHA for failure to prevent harassment. In closing, on the other side, the statute further states that while complying with the training requirement it still does not insulate an employer from sexual harassment liability if one should occur.
An employer will be better able to defend against sexual harassment suit or other types of discriminatory harassment claims if the company has a policy prohibiting such conduct. An employee handbook should describe the policy and provide an effective procedure for resolving harassment complaints internally. Employers should do everything they can to ensure they are able to demonstrate having exercised "reasonable care" to prevent and promptly correct any sexually harassing behavior.
Employee policy handbook updates and workplace training are needed to protect employers and should always be reviewed by qualified legal counsel. Remember to always, document, document, and document!