All employers know that
sexual harassment is among the most serious of workplace problems. California has passed
legislation showing the importance of preventing workplace sexual harassment. California Government Code section 12950.1
requires that employers comply with certain sexual harassment training rules
and procedures.
Which employers must
provide training?
This law applies to employers
with 50 or more employees. It is not required
that all 50 employees be in California.
Who must be trained?
Training must be given to all
employees who are employed as supervisors as of July 1, 2005. All employees who become supervisors after
July 1, 2005 must receive training within six months of assuming a supervisory
position.
Who is a supervisor?
The new law does not define
the word “supervisor.” Yet, the Fair Employment and Housing Act defines a
“supervisor” as, among other things, one who has the authority to hire or fire,
reward or discipline other employees, direct other employees, or exercise
independent judgment. This is a broad
definition, and whether an employee is exempt or non-exempt for purposes of
wages is not controlling.
Employers should construe
“supervisors” broadly - if there is doubt as to whether your employee is a
“supervisor,” train them just to be safe.
What type of
training is sufficient?
The law requires that the
training be of the “classroom” variety or other “interactive training.” California’s
Department of Fair Employment and Housing has strongly suggested that web-based
training is sufficient as “interactive” training. However, if a trainer is not actually
present, one should be available to answer questions within two business days
after the question is asked.
Furthermore, the training must include practical examples dealing with
prevention of harassment, discrimination and retaliation.
Who can train?
Three categories of people
are qualified to train: (1) attorneys, (2) professors or instructors, and (3)
Human Resource professionals or Harassment Prevention Consultants. For each category, the trainers must have two
years of experience.
How often must
employees be trained?
Employees covered by the law
must be trained every two years.
How much training is
needed?
If the training is conducted
as “classroom training,” the actual time instructors spend teaching must total
two hours, excluding breaks. If the
training is web-based, it must take at least two hours to complete the course.
What records need to
be kept?
The biennial training can be
tracked by the individual employee, or by using a “training year” method in
which the employer chooses training years for all supervisors. Employers must remember, however, that new
supervisory employees must be trained within six months of hire or
promotion. A record of who received the
training, when it took place and what type, and who gave the training must be
kept for two years.
Final Points
Proper training does not
completely safeguard employers from sexual harassment lawsuits. Also, failure to provide training does not,
in and of itself, make an employer liable for sexual harassment. However, the Fair Employment and Housing
Commission can order an employer to give proper training. Yet if employers fail to properly train
supervisory employees, a court could find that such violates the state’s public
policy, creating even more liability if an employer is sued for sexual
harassment. Ensuring that employees are
properly trained requires some effort and planning - yet in this regard, it is
certainly worth it.
