Modified Proposed Regulations to AB 1825 (California Mandatory Training Law) Issued

On June 20, 2006 the California Fair Employment and Housing Commission modified its proposed regulations to AB1825, California’s mandatory sexual harassment training law. These modified proposed regulations were published on the Commission’s website on June 30, 2006.

Summary of New Proposed Regulations

• Number of Employees:  Employers with 50 or more employees are required to provide training. There is no requirement that all of the 50 employees work or reside in California or that they all work in the same location.  Employees include full-time, part-time, temporary, and contractors (changed from “contract workers” in the prior version).
• Supervisory Employees: A supervisory employee does not have to be physically located in California to be covered by the training requirement as long as the individual directly supervises people who are in California (“directly” has been added to the definition). In addition, sending an individual through the training does not create an inference or assumption that the person is a supervisor (in other words, err on the side of sending someone to the training even if you are not sure they qualify as a supervisor).
• Delivery Method: Training can be provided either in the classroom, by webcast, or online (or by other non-classroom methods such as audio, video, or computer technology) to satisfy the training requirement.
  • E-learning must include a link or instructions explaining how to contact trainers or educators directly, either those working for the employer or retained by the e-learning provider. The trainers must be available to answer questions and provide guidance and assistance on harassment training issues within no less than two business days after the participant asks the question.
  • A webcast must document and demonstrate that each supervisor who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated in the training’s interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities. The webcast must provide the participants an opportunity to ask questions and have them answered, and otherwise seek guidance and assistance.
  • The instruction in any training method must include: questions that assess learning, skill-building activities that assess the supervisor’s application and understanding of the content covered, and numerous hypothetical scenarios about harassment, each with one or more discussion questions to ensure participants remain measurably engaged in the training.
• Length: Training must consist of two hours of classroom, webcast, or e-learning instruction. Any e-learning program must take a supervisor no less than two hours to complete.
• Duration: The training does not need to be completed in two consecutive hours. For classroom and webcast programs, the minimum duration of any segment of training is 1/2 hour. For e-learning, the program may contain a bookmarking feature which allows supervisors to pause their individual training so long as the actual program is two hours long (previous minimum of 15-minute increments for e-learning has been eliminated).
• Frequency: Training must be provided every two years, measured from the date the supervisor last completed training (the allowance of a training year for the employer to train all supervisors is deleted).
• Who Conducts the Training: Training should be conducted by a “qualified trainer” who is able to answer questions from participants. A qualified trainer includes an individual who has legal education or practical experience in harassment, discrimination, and retaliation training, and knowledge of California and federal laws prohibiting unlawful harassment, discrimination, and retaliation. The instructional designer who creates the content must also have the same content knowledge as qualified trainers (excluding e-learning designers or technicians who are not responsible for content).

Qualified to train about:

• What are unlawful harassment, discrimination, and retaliation under both California and federal law?
• How to intervene when harassing behavior occurs in the workplace
• How to report complaints of harassment
• How to respond to a complaint of harassment
• The employer’s obligation to conduct a workplace investigation of a harassment complaint What constitutes retaliation and how to prevent it.
• The essential components of an anti-harassment policy
• The effect of harassment on harassment employees, co-workers, harassers and employers
• Content: The new proposed regulations require (rather than recommend) the trainer to use hypotheticals or examples that illustrate the course content and involve the supervisor through questions, problem solving, and quizzes to ensure the information is understood. The course must include the following content:
  • Fair Employment and Housing Act (“FEHA”) and Title VII definitions of unlawful sexual harassment (types of harassment other than sexual harassment may be defined and discussed)
  • FEHA and Title VII provisions and case law concerning the prohibition against and prevention of unlawful sexual harassment
  • The types of conduct that constitute sexual harassment
  • Remedies available for sexual harassment
  • Strategies to prevent sexual harassment in the workplace
  • 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 (including to whom they should report any alleged sexual harassment)
  • The employer’s obligation to conduct an effective workplace investigation of a complaint
  • Training on what to do if a supervisor is personally accused of harassment
  • The essential elements of an anti-harassment policy and how to use it if a harassment complaint is filed. Either the employer’s policy or a sample policy must be provided to the participants. Regardless of whether the employer’s policy is used as part of the training, the employer must give each supervisor a copy of its anti-harassment policy and require each supervisor to read and acknowledge receipt of that policy.
• Record Retention: The modified regulations require that records of training be maintained for at least two years and that these records include: the name of the supervisor trained, the date of the training, the type of training, and the name of the trainer, educator, or instructional designer.
• New Supervisors: A new supervisor who received training with a prior employer within two years must be provided with a copy of the anti-harassment policy and be required to read and acknowledge it within six months of assuming the position. Thereafter, the supervisor must be scheduled to complete training every two years based on the last harassment training date.

Significant Changes/Deletions from Prior Proposed Regulations Not Noted Above

Delivery Method: Some requirements related to opportunities to ask questions and the use of testing that previously applied only to online and webcast instruction have been expanded and now apply to all delivery methods.

Length of Training: The modified regulations no longer allow the use of an e-learning program that has the same content but could be completed in less than two hours. E-learning programs must be timed, and rapid learners must still take at least two hours of instruction. The requirement for feedback at least every 15 minutes has been deleted. 

Qualifications of the Trainer or Educator:

• The regulations no longer list the examples of a California licensed attorney, HR professional, or psychologist as appropriate trainers but now refer to anyone with the requisite background and knowledge.
• The regulations require knowledge in discrimination and retaliation law in addition to harassment, and also add these components and some other details to the list of trainer qualifications.
• The  previously outlined desirable and undesirable qualities of a trainer have been eliminated.

Training Content:

• Trainers are required rather than recommended to use hypotheticals and examples, and to use questions, problem solving, and quizzes to ensure understanding.
• Some of the specifics of the content have been modified and clarified, for example, to include only sexual harassment in the requirement in several instances, and to clarify the use of an employer’s anti-harassment policy.

The provisions related to Record Retention and New Supervisors are new to the modified regulations.

What if training previously provided did not include every element required under the regulations once they are enacted?
The new proposed regulations continue to include a provision that indicates if an employer made a good faith effort to comply with the law prior to enactment of the regulations, it will be deemed to be in compliance even if every single element was not addressed.

What if an employer fails to conduct the mandatory training?

The new proposed regulations still provide that the Fair Employment and Housing Commission can issue an order requiring an employer to comply with the training requirements within 60 days of the order.

When will the proposed regulations (with any revisions) go into effect?

The Fair Employment and Housing Commission will accept public comment on the modified regulations until July 21, 2006. The Commission is currently scheduled to consider whether to adopt or further modify these proposed regulations at a meeting on August 29, 2006.

Looking Beyond the Requirements

If an organization’s true objective is to end workplace harassment, training should be viewed as a component rather than the overall solution to the problem. The content of the training should fit within a strategy to set standards of conduct that align with organizational values.  

When developing a training strategy and approach, these questions need to be answered:

• What are leaders at all levels doing to communicate their commitment to organizational standards?
• How are they communicating standards of behavior in the context of workaday performance and business expectations as opposed to abdicating that responsibility to mandatory training?
• How committed are leaders to taking corrective action to deal with improper behaviors no matter who is involved, just as they would with other serious infractions affecting the organization’s values and mission?

They need to be answered before rather than after problems arise because these are the very same questions that will be asked when complaints or litigation arise. Effective training, whether online or in the classroom, should be seen as an instrument to help communicate the concerns, change behavior, and build the appropriate skills that relate to addressing these concerns.

About ELI®

Founded in 1986, ELI is a training company that teaches professional workplace conduct, helping clients translate their values into behaviors, increase employee contribution, build respectful and inclusive cultures, and reduce legal and ethical risk.

Over the past 20 years, we have worked with organizations across a variety of industrial sectors to help them develop managerial skills that foster open communications, teamwork, and effective decision-making. Recognizing that managers need to know what to do in addition to knowing what the law requires, we design our award-winning online, webcast, and classroom training solutions with practical application and outcomes in mind. Participants learn skill steps and guidelines that will help them operationalize key concepts back on the job and align their behavior with the organization’s values.

ELI^® specializes in the following training: harassment and sexual harassment training; race, age, gender, disability, pregnancy, religious, sexual orientation, genetic, and other forms of discrimination training; retaliation and protected protest; unjust dismissal; fair hiring; Civil Treatment training; compliance training; wage and hour compliance training; business ethics training; Sarbanes-Oxley training; Employee Free Choice Act and union avoidance training; values-based leadership training; leadership development; and abusive and bullying behavior.