2019 and Sexual Harassment in CA

Sexual Harassment has been a very valid concern within any State. Well, this year has brought about some changes of which YOU must be aware otherwise, you could incur the consequences. Compliance & Safety First and SHRMis here to help you avoid all that.

The article below is a bit long winded but I wanted you all to understand the full gamit of what you are required to do to fulfill your obligations. I would like to thank SHRM (Society for Human Resource Management) for providing the substance of this document.

Overview

California has progressively led state-mandated sexual harassment training requirements for private-sector employers. This article describes the basic requirements, applicability and required documents, including such issues as current California requirements for sexual harassment training and HR's role in training.

Business Case

Employers must approach workplace harassment prevention with extreme caution to reduce the risk of lawsuits, agency charges and penalties, decreasing morale and other fallout. Not only is training employees on sexual harassment in the workplace required by California employment law, but it is also arguably the first and foremost best practice in preventing legal risks associated with sexual harassment. Prevention is the best measure in all cases. EPLI Insurance ( Employment Practices Liability Insurance) is another way to cover your executives as well. ( That discussion is for another article.)

Legislation

California's Fair Employment and Housing Act (FEHA) and the federal Title VII of the Civil Rights Act of 1964 make sexual harassment illegal in the workplace. California's AB 1825, enacted in 2005, makes certain employer action items and training mandatory.

Effective Jan. 1, 2015, amendment AB 2053 requires all California employers subject to the mandatory training requirement under AB 1825 to include a component on preventing "abusive conduct."

Effective Apr. 1, 2016, FEHA regulations were revised to clarify and expand the protections, employer actions and training requirements.

Effective Jan. 1, 2018, SB 396 expanded required training for supervisors to prevent sexual harassment to include gender identity, gender expression and sexual orientation.

SB 1343 amended the FEHA regulations and requires businesses with five or more employees to provide sexual-harassment-prevention training to all workers by Jan. 1, 2020, and every two years thereafter.

Mandatory Training and Related Requirements

All employers that have employees in California must take the following actions against harassment, as described in The Facts About Sexual Harassment brochure attached below.

Prevent and stop harassment

Employers must take all reasonable steps, such as policy assimilation and training, to prevent discrimination and harassment from occurring. Prohibitions should be included against sexual harassment; gender harassment; and harassment based on pregnancy, childbirth, breast-feeding and related medical conditions, as well as harassment based on all other characteristics listed above and under the law. If harassment does occur, organizations must take effective action to stop any further harassment and to correct any effects of the harassment.

Create a policy and procedure

Per the regulations, "Employers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act. In addition to distributing the Department of Fair Employment and Housing's DFEH-185 brochure (attached below) on sexual harassment, or an alternative writing that complies with Government Code section 12950, an employer shall develop a harassment, discrimination, and retaliation prevention policy that:

(1) Is in writing;

(2) Lists all current protected categories covered under the Act;

(3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and

managers, with whom the employee comes into contact from engaging in conduct prohibited by

the Act;

(4) Creates a complaint process to ensure that complaints receive:

1. An employer's designation of confidentiality, to the extent possible;

2. A timely response;

3. Impartial and timely investigations by qualified personnel;

4. Documentation and tracking for reasonable progress;

5. Appropriate options for remedial actions and resolutions; and

6. Timely closures.

(5) Provides a complaint mechanism that does not require an employee to complain directly to his

or her immediate supervisor, including, but not limited to, the following:

1. Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or

2. A complaint hotline; and/or

3. Access to an ombudsperson; and/or

4. Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.

(6) Instructs supervisors to report any complaints of misconduct to a designated company

representative, such as a human resources manager, so the company can try to resolve the

claim internally. Employers with 50 or more employees are required to include this as a topic in

mandated sexual harassment prevention training, pursuant to section 11024 of these

regulations.

(7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely,

and thorough investigation that provides all parties appropriate due process and reaches

reasonable conclusions based on the evidence collected.

(8) States that confidentiality will be kept by the employer to the extent possible, but not indicate

that the investigation will be completely confidential.

(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial

measures shall be taken.

(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a

complaint or participating in any workplace investigation." (§11023(b)).

Policies should include provisions to fully inform the complainant of his or her rights and any obligations to secure those rights. All employees should be made aware of the seriousness of violations of the discrimination and harassment prevention policy and must be cautioned against using peer pressure to discourage harassment victims from complaining.

Post the employment poster

Employers must post the California Law Prohibits Workplace Discrimination and Harassment and Transgender Rights in the Workplace posters.

Distribute literature

Employers must distribute an information sheet on sexual harassment to all employees. An employer may either distribute The Facts About Sexual Harassment pamphlet or develop an equivalent document that meets the requirements of Government Code §12950(b). Employers may choose the manner of distribution, so long as the method chosen reaches each employee. For example, the notice may be included with an employee's pay check.

Per the code, employers must also disseminate the company's discrimination and harassment prevention policy via one or more of the following methods:

• Printed in hard copy, along with a printed acknowledgement form.

• E-mailed with an acknowledgement form.

• Posted on the organization's intranet, and employees are sent the link and some type of tracking system to ensure employees have read and acknowledged receipt.

• Discussed in person during new-hire orientation.

• Handled in any other manner that ensures receipt of policy and that employees understand it. (§11023(c))

Employers should distribute and discuss the discrimination and harassment prevention policy periodically and in multiple ways with employees to ensure they fully understand and are reminded of their rights and responsibilities.

Train supervisors

Employers that do business in California and have "50 or more employees," as well as all public employers, must provide at least two hours of sexual harassment training every two years to each supervisory employee and to all new supervisory employees within six months of their assumption of a supervisory position.

The phrase "50 or more employees" is defined by the FEHA regulations to include part- and full-time employees, temporary workers and contractors who are employed or engaged by the organization (including employees located outside the state of California) for each workday in any 20 consecutive weeks in the current or preceding calendar year. (§11024(a)).

Employers can choose to retrain supervisors on their individual two-year training date or designate a "training year" during which all supervisors will be retrained, as long as no supervisor goes more than two years between trainings.

Train Employees

Enacted on Sep. 30, 2018, SB 1343 requires businesses with five or more employees to provide sexual-harassment-prevention training to all workers by Jan. 1, 2020, and every two years thereafter. This expands the training requirements significantly as previously employers with 50 or more employees only had to provide training to supervisory employees. Non-supervisory employees must receive one hour of training while supervisory employees must continue to receive two hours of training.

In addition, beginning Jan. 1, 2020, for seasonal and temporary employees, or any employee that is hired to work for less than six months, an employer shall provide training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first. Temporary workers employed by a temporary agency must be trained by the temporary agency, not the client.

Acceptable modes of training

Many styles of training—both high- and low-tech—are available. Hybrid or blended training, which combines traditional classroom training with other media (e.g., Internet-based training, slide presentations), is considered by training experts to be a good choice. Interactivity—active participation by trainees—is essential, as is that the trainer have specialized qualifications and skills.

State regulations identify the acceptable modes of "effective interactive training" as the following:

1. "'Classroom' training is in-person, trainer-instruction, whose content is created by a trainer and provided to a supervisor by a trainer, in a setting removed from the supervisor's daily duties.

2. 'E-learning' training is individualized, interactive, computer-based training created by a trainer and an instructional designer. An e-learning training shall provide a link or directions on how to contact a trainer who shall be available to answer questions and to provide guidance and assistance about the training within a reasonable period of time after the supervisor asks the question, but no more than two business days after the question is asked. The trainer shall maintain all written questions received, and all written responses or guidance provided, for a period of two years after the date of the response.

3. 'Webinar' training is an internet-based seminar whose content is created and taught by a trainer and transmitted over the internet or intranet in real time. An employer utilizing a webinar for its supervisors 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 with the training's interactive content, discussion questions, hypothetical scenarios, polls, quizzes or tests, and activities. The webinar must provide the supervisors an opportunity to ask questions, to have them answered and otherwise to seek guidance and assistance. For a period of two years after the date of the webinar, the employer shall maintain a copy of the webinar, all written materials used by the trainer and all written questions submitted during the webinar, and document all written responses or guidance the trainer provided during the webinar.

4. Other 'effective interactive training' and education includes the use of audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training. These, however, are supplemental tools that cannot, by themselves, fulfill the requirements of this subdivision.

5. For any of the above training methods, the instruction shall include questions that assess learning, skill-building activities that assess the supervisor's application and understanding of content learned, and numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain engaged in the training. Examples include pre- or post-training quizzes or tests, small group discussion questions, discussion questions that accompany hypothetical fact scenarios, use of brief scenarios discussed in small groups or by the entire group, or any other learning activity geared towards ensuring interactive participation as well as the ability to apply what is learned to the supervisor's work environment." (§11024(a))

Regardless of the mode of training, the length must be at least two hours for supervisors and one hour for non-supervisory employees. E-learning providers (and employers that use such products) must be certain that the program takes at least two hours to complete. Each mode of training must provide an opportunity for the attendee to obtain answers to questions within two business days of the training. Obviously, with live classroom training, participants may ask questions during the training session. E-learning training must include a hyperlink or directions on how to contact a live trainer (2 C.C.R. §7288.0(a)(11)(C)). Similarly, webinars must afford attendees an opportunity to participate in the live training discussions and to ask questions.

Qualified trainers

Earlier versions of the regulations described qualifications for trainers that could have precluded many experienced HR professionals from providing in-house training. The final regulations simplified the qualifications and broadened the pool of potential trainers. Under the final regulations, qualified trainers can be attorneys, professors or instructors, HR professionals, or harassment prevention consultants. Attorneys must have been admitted to practice in any jurisdiction in the United States for at least two years and have employment law issues related to Title VII of the Civil Rights Act of 1964 or to the FEHA as part of their practices. 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 as it applies to the FEHA or Title VII.

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 regarding discrimination, retaliation and sexual harassment prevention." (§11024(a))

Individuals who do not meet the qualifications of a trainer as an attorney, HR professional, harassment prevention consultant, professor or instructor because they lack the requisite years of experience may team-teach with a trainer in classroom or webinar settings provided that the trainer supervises these individuals and that the trainer is available throughout the training session to answer questions from attendees.

All trainers must have the ability to teach about the following topics:

• Identifying unlawful harassment, discriminatory and retaliatory behavior under both the FEHA and federal law.

• Steps to address harassment in the workplace.

• Reporting complaints of harassment.

• Reporting obligation of supervisors when aware of harassment, discrimination or retaliation.

• Responding to complaints of harassment.

• Employer's obligation to conduct an investigation.

• Identifying retaliation and how to avoid it.

• Essential components of a policy against harassment.

• Effect of harassment on the harasser, victims, employers and co-workers. (§11024(a))

Abusive conduct standard

As of Jan. 1, 2015, amendment AB 2053 requires all California employers subject to the mandatory training requirement under AB 1825 to include a component on preventing "abusive conduct." The amendment did not formally add abusive conduct as a protected category under the FEHA; rather, it amended only the training requirement.

Under the amendment, "abusive conduct" means "conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious." (AB 2053)

Employers must also be sensitive to discussing California's abusive conduct standard without running afoul of National Labor Relations Board (NLRB) decisions under proscribing overbroad, undefined terms that allegedly restrict employees' protected, concerted activity under the National Labor Relations Act (NLRA). Thus, it may be important to distinguish the application of the new California term from the NLRB's case law faulting employer policies prohibiting "abusive" conduct.

Training objectives

Per the regulations, "The learning objectives of the training mandated by Government Code section 12950.1 shall be:

1. to assist California employers in changing or modifying workplace behaviors that create or contribute to "sexual harassment," as that term is defined in California and federal law;

2. to provide trainees with information related to the negative effects of abusive conduct (as defined in Government Code section 12950.1(g)(2)) in the workplace; and

3. to develop, foster, and encourage a set of values in supervisory employees who complete mandated training that will assist them in preventing, and effectively responding to incidents of sexual harassment, and implementing mechanisms to promptly address and correct wrongful behavior." (§11024(b))

Training content

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

Under AB 1825, and as amended by AB 2053 and the revised FEHA regulations, required sexual harassment training must at the minimum include:

• FEHA and Title VII definitions of unlawful sexual harassment (employers may wish to define and train on other forms of harassment and discrimination).

• Federal and state statutory and case law principles.

• The types of conduct that constitute harassment.

• Harassment prevention of lesbian, gay, bisexual and transgender (LGBT) employees—as well as those who are perceived as LGBT.

• Prevention of abusive conduct.

• Available remedies for victims of harassment via civil actions and the potential liability for employers and individuals.

• Harassment prevention strategies.

• Supervisor's personal obligation to report any harassment, discrimination or retaliation immediately on becoming aware.

• Practical illustrative examples of harassment (real cases or hypotheticals) using role plays, case studies, group discussions or other methods.

• An explanation of limited confidentiality during the harassment complaint and investigation process.

• Resources for victims (such as to whom they should report harassment).

• Appropriate remedial steps to correct harassing behavior, including the employer's obligation to effectively investigate harassment.

• What a supervisor should do if accused of harassment.

• Essential elements of an anti-harassment policy including the supervisor's role in the complaint procedure (provide the supervisor with a copy of the company's harassment prevention policy and obtain acknowledgement that he or she has received and read the policy).

Prevention of abusive conduct should be covered in a meaningful manner:

A review of the definition of "abusive conduct" as used in this context (and as defined by Government Code section 12950.1(g)(2)). The training should explain the negative effects that abusive conduct has on the victim of the conduct as well as others in the workplace. The discussion should also include information about the detrimental consequences of this conduct on employers—including a reduction in productivity and morale. The training should specifically discuss the elements of "abusive conduct," including conduct undertaken with malice that a reasonable person would find hostile or offensive and that is not related to an employer's legitimate business interests (including performance standards). Examples of abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance. Finally, the training should emphasize that a single act shall not constitute abusive conduct, unless the act is especially severe or egregious. While there is not a specific amount of time or ratio of the training that needs to be dedicated to the prevention of abusive conduct, it should be covered in a meaningful manner. (§11024(c))

The training may address other forms of harassment and discrimination and must include prevention of abusive conduct as a component.

Retain records

The requirements for sexual harassment prevention training record maintenance fall under both AB 1825 and revised FEHA regulations. Employers must keep all of the following training records for at least two years:

• Date of training.

• Names of attendees.

• Names of trainers or training providers.

• Types of training (e.g., classroom, webinar, e-learning).

• Sign-in sheet.

• Copies of all written training materials (e.g., company policies and procedures, handouts, exercises, quizzes).

• Copies of all recorded training materials (e.g., videos, webinars).

• Copies of all written questions received and all written responses or guidance provided during any webinar or e-learning.

• Copies of any certificates provided (certificate of completion or certificate of attendance). (§11024(b))

Legal Remedies

The Department of Fair Employment and Housing (DFEH) can obtain an order requiring a non-compliant employer to provide the mandatory training. The law states that compliance with AB 1825 is not a defense to a sexual harassment claim and, conversely, that a supervisor's failure to receive training is not grounds for establishing liability for harassment under the FEHA.

Enforcement

California's sexual harassment training requirements are enforced by the DFEH under the FEHA.

Here is your direct link to the DFEH 185 Handout for your employees:

DFEH 185 The Facts AboutSexual Harassment Handout

If you need ANY Compliance or Safety help, just give me a call or email ......I WILL HELP!

Glenn Salter

V.P. Compliance & Safety First

909-481-7223

Glenn@complianceandsafetyfirst.com