On September 30, 2018, Governor Jerry Brown signed into law S.B. 1343, which now requires that employers with 5 or more employees in California provide 1 hour of sexual harassment and abusive conduct training to non-managerial employees, and 2 hours for managerial employees once every two years. Managerial employees must receive training within 6 months of hire or promotion.
BY WHAT DATE MUST EMPLOYEES BE TRAINED?
All managerial and non-managerial employees must receive training by January 1, 2020. After January 1, 2020, employees must be retrained once every two years. That means that all employees statewide must be retrained again by January 1, 2022.
WHAT IF MY EMPLOYEES WERE TRAINED BETWEEN JANUARY 1 AND DECEMBER 31, 2018?
The law requires that employees be trained during calendar year 2019. According to the recently released DFEH FAQs, employees who were trained in 2018 or before will need to be retrained.
S.B. 1343 requires that the California Department of Employment and Fair Housing (DFEH) make online training courses available on the prevention of sexual harassment and abusive conduct in the workplace. However, DFEH does not expect to have such trainings available until late 2019. Therefore, in order to ensure that your employees receive the required training by January 1, 2020, it is best to schedule training now to secure the availability of a trainer, account for any employee make-up sessions, and to train in multiple sessions to stagger the number of employees who are taken away from work to attend training.
WHAT ARE THE TRAINING REQUIREMENTS?
In addition to training that illustrates the types of harassment with examples of how to identify, prevent, report, and investigate such behavior, existing law requires that the trainings include topics on identity, gender expression, sexual orientation, and practical examples of such harassment based on gender harassment.
Training shall be provided by trainers or educators with knowledge and expertise in those areas. SB 1343 also requires that the DFEH produce and post both training courses to its website, which employers may utilize instead of hiring a trainer.
There is no requirement that the 5 employees or contractors work at the same location or that all work or reside in California.
Under the DFEH’s regulations, the definition of “employee” includes full-time, part-time, and temporary employees.
WHAT WILL HAPPEN IF MY EMPLOYEES ARE NOT TRAINED BY JANUARY 1, 2020?
DFEH accepts complaints from employees that their employers have not complied with the law requiring that sexual harassment prevention training be provided. Complaints filed with DFEH after January 1, 2020, regarding an employer’s failure to provide required sexual harassment and abusive conduct prevention training will be reviewed in light of the totality of the circumstances, which may include the availability of DFEH’s online training courses or the availability of qualified trainers. If DFEH finds that the law has been violated, it will work with employers to obtain compliance with the law.
WHAT ARE THE LAWS AND REGULATIONS GOVERNING THE SEXUAL HARASSMENT AND ABUSIVE CONDUCT PREVENTION TRAINING?
The law requiring sexual harassment and abusive conduct prevention training is Gov. Code 12950.1. The regulations governing such trainings are 2 CCR 11024.
DOES THE EMPLOYER HAVE TO PAY FOR THE COST OF THE SEXUAL HARASSMENT/ABUSIVE CONDUCT PREVENTION TRAINING?
Yes. California law specifies that an employer shall provide sexual harassment and abusive conduct prevention training. Gov. Code 12950.1(a)-(b). In addition, the DFEH is authorized to seek a court order that “the employer” has not complied with this requirement. Gov. Code 12950.1(f).
DOES THE EMPLOYER HAVE TO PAY ITS EMPLOYEES FOR THE TIME THEY SPEND TRAINING?
Yes. It is the employer’s—not the employee’s—responsibility to provide the required training, including any costs that may be incurred. The language of the law also makes clear that employees may not be required to take such training during their personal time, an that the training must be “provided” by the employer as part of an individual’s employment.
MUST A WRITTEN POLICY ACCOMPANY THIS TRAINING?
Yes. California law requires that employers develop and distribute to employees a written policy about the prevention of discrimination, harassment, and retaliation in the workplace. The mandatory components of every workplace EEO policy are listed in the California Code of Regulations at 2 CCR § 11023 and include a description of legal categories, a complaint process, instructions for supervisors, and identification of DFEH and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
The sample policy is intended to assist employers in meeting legal requirements while developing their own workplace-specific policies. The document also contains a sample complaint form that employers can revise and adopt for internal use.
According to the DFEH Workplace Harassment Guide for California Employers, companies should provide a clear and easy to understand written policy that is distributed to employees and discussed at meetings on a regular basis (for example, every six months). The regulations list the required components of an anti-harassment policy at 2 CCR §11023.
WHERE CAN I SCHEDULE THIS TRAINING, AND WHAT SHOULD IT INCLUDE?
Training should be provided by a California licensed employment attorney, or trainer who is certified to provide such training.
The Grady Firm, P.C. provides on-site classroom-style harassment and abusive conduct prevention training throughout California. Our training includes live Q&A with a 10+-year employment attorney, an interactive Power Point presentation with videos, real-world case examples of litigation resulting from harassment, quizzes, and certificates of completion. Training is offered in English and Spanish.
As part of the second hour, we offer unique “experiential” supervisor training in which managerial employees practice processing a harassment complaint and commencing an investigation in pairs with other trainees. Often, this experience is the first time the managers have had the opportunity to interview an employee and begin an investigation. This is the time where they can ask questions and practice their fact-finding and complaint preparation with compassion and fairness for both the victim and the company with support of an employment lawyer and the company’s Human Resources department.
In addition, The Grady Firm can prepare your Anti-Harassment and Corrective Action Policy, and update your Employee Handbook to reflect changes to California employment law effective in 2019.
To book a training session and/or update your documents in 2019, call (323) 450-9010, or fill out our Contact Request Form.
About The Grady Firm, P.C.
The Grady Firm, P.C. attorneys specialize in helping businesses grow and succeed through
employment, business, and immigration law advising for clients in California. They help perform personnel audits, draft/revise Employee Handbooks, train employers on employment law compliance, provide on-demand legal analysis for hiring and firing questions, and provide leadership and sexual harassment training in English and Spanish.
To learn more about ensuring your business is compliant with state and local laws, schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (323) 450-9010; or fill out a Contact Request Form.
*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.