Proposed FEHC Regulations for AB 1825

Proposed FEHC Regulations for AB 1825

FEHC revised AB 1825 regulations (June 20, 2006 version)

AB 1825 (Gov code section 12935(a)) clarified by the Proposed Fair Employment Housing Commission Regulations (CCR, Title 2, section 7288.0)

LAWROOM OUTLINE

SUMMARY

DEFINITIONS

1. Employer

(a) Private

(b) Government

2. Employee

3. Contractor

4. Supervisor

(a) Out-of-State

(b) No Inference

TRAINING REQUIREMENTS

1. Training Methods

(a) Classroom

(b) Webinar

(d) Other effective interactive training

2. Qualified Instructional Designers & Trainers

(a) Instructional Designer

(b) Qualified Training

3. Training Duration

4. Instructional Content

(a) Interactive elements

(b) Specific content

5. Training Frequency

(a) Current Supervisors

(b) New Supervisors

DOCUMENTATION & RECORD KEEPING

1. Training Information

2. Retention of records

COMPLIANCE
SUMMARY

AB 1825 requires employers to provide at least two hours of effective training to all supervisory employees on the prevention of sexual harassment, discrimination and retaliation.

DEFINITIONS

1. Employer

(a) Private Employer: any business in California that employs or engages 50 or more employees or contractors for each working day for at least 20 consecutive weeks in the current or preceding calendar year. The count includes out-of-state employees and contractors.

Note: If the employer had the requisite 50 plus employees and contractors in the prior year, but less today, the employer still must train its supervisors.

(b) Government Employer: the state of California, counties, and any other political or civil subdivision of the state and cities, regardless of the number of employees. Political subdivisions include governmental and quasi-governmental entities such as boards, commissions, local agencies and special districts.

2. Employee

An employee is any full time, part time, and temporary workers. This includes leased employees.

3. Contractor

A contractor is any person performing services pursuant to a contract (e.g., an independent contractor) or as an agent, whether directly or indirectly.

4. Supervisor

A supervisor is anyone who directs other employees, or has the authority (or influence) to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, adjust grievances, or discipline other employees.

(a) Out-of-state supervisors: who "directly supervise" California workers must be trained.

(b) No Inference: If a non-supervisor employee attends the training, it does not create an inference that the employee is a supervisor.

TRAINING REQUIREMENTS

1. Training Methods

The following methods qualify as effective training:

(a) Classroom -- in-person, trainer-instruction, created by an “instructional designer” and provided by a “qualified trainer” in a setting removed from the supervisor’s daily duties.

(b) Webinar -- an Internet-based seminar created and taught by a qualified trainer. A webinar must document and demonstrate that each supervisor who was not physically present in the same room as the trainer attended the entire training and actively participated with the training’s interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities. The webinar must provide an opportunity to ask questions and get answers.

· is written, reviewed and approved by an instructional designer.

· provides a link or directions on how to contact the trainer to answer questions. The trainer can work for the employer or the e-learning provider and must answer questions within two business days.

(d) Other Effective Interactive Training: includes non-classroom instruction using audio, video or computer technology.

2. Qualified Instructional Designers & Trainers

(a) Instructional Designer: An instructional designer is responsible for writing, reviewing and/or approving the content of harassment training and must have the same content knowledge as a “Qualified Trainer.”

(b) Qualified Trainer -- to qualify as a trainer:

· Experience/Knowledge: the trainer must have legal education or practical experience in harassment, discrimination, and retaliation training and have knowledge of California and federal laws prohibiting unlawful harassment, discrimination and retaliation to answer student questions.

· Training qualifications: the trainer must be qualified to train about:

what are unlawful harassment, discrimination and retaliation under both California and federal law;

how to intervene when harassing behavior occurs;

how to report harassment complaints;

how to respond to a harassment complaint;

what constitutes retaliation and how to prevent it;

essential components of an anti-harassment policy;

the employer’s obligation to conduct a workplace investigation of a harassment complaint; and

the effect of harassment on harassed employees, co-workers, harassers and employers.

Interaction: the trainer must use hypotheticals or examples that illustrate the course content and involve the supervisor through questions, problem solving, and quizzes to insure that the information is understood.

3. Training Duration

(a) Classroom and Webinars: Training must take at least two hours. It does not have to be completed in two consecutive hours. The minimum segment is half an hour.

(b) E-learning: the training must take the supervisor no less than two hours to complete the training. It does not have to be completed in two consecutive hours. The student can pause and return without any minimum if the actual e-learning program is two hours. LawRoom’s “timing guarantee” complies.

4. Instructional Content

(a) Interactive elements for all training methods 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 one or more discussion questions so that supervisors remain measurably engaged in the training.

(b) Specific content for the course must include:

· a definition of unlawful sexual harassment under California and federal law, other forms of harassment, and how harassment can cover more than one basis.

· FEHA and Title VII statutory provisions and case law concerning the prohibition against and the prevention of unlawful sexual harassment.

· The types of conduct that constitutes sexual harassment, strategies to prevent harassment, and remedies available to harassed victims.

· Practical examples such as factual scenarios from case law, news and media accounts, hypotheticals based on workplace situations, and other sources which illustrate sexual harassment, discrimination and retaliation using role plays, case studies, and group discussions.

· The limited confidentiality of the complaint process.

· Resources for victims of unlawful sexual harassment, such as to whom they should report any alleged sexual harassment.

· The employer’s obligation to conduct an effective workplace investigation of a harassment complaint.

· What the supervisor should do if personally accused of harassment.

· The essential elements of an anti-harassment policy and how to utilize it if a harassment complaint is filed.

(c) Employer’s Anti-harassment Policy: the training must provide the employer’s policy or a sample policy. Plus, the employer must give each supervisor a copy of its anti-harassment policy and require each supervisor to read and acknowledge receipt of the policy.

5. Training Frequency

(a) Current Supervisors: employers must train supervisors every two years by tracking the training of each supervisor, measured two years from the date the supervisor was last trained (completion date).

This answers the question of when employers must train supervisors who were excused from the 2005 deadline. They must train their supervisors two years from the date the supervisors were last trained, period.

Employers DO NOT have until 2007 to train these supervisors. So, if a supervisor was last trained on March 31, 2003, the employer is out of compliance today. If a supervisor was last trained on August 25, 2004, the supervisor must be trained by August 24, 2006.

(b) New Supervisors:

· New Promotion: a newly promoted supervisor who has not received AB 1825 training within two years of the promotion date -- must be trained within six months of the promotion date and then every two years from the date the supervisor is last trained

· New Hire - Not previously trained: a newly hired supervisor who has not received AB 1825 training at another employer within two years of the hire date -- must be trained within six months of the hire date and then every two years from the date the supervisor is last trained.

· Previously trained: a newly hired supervisor who received AB 1825 training at another employer within two years of the hire date – need NOT be trained, but must:

o be given a copy of the employer’s anti-harassment policy within six months of the hire date

o required to acknowledge that the supervisor received and read the policy, and

o trained no later than two years from the date last trained by the other employer.

Depending on the date, it may require the employer to train the supervisor within six months. If the supervisor was trained 20 months before the hire date, the new employer would have to train the supervisor before the end of four months.

But, if the supervisor was trained only a month before the hire date, the new employer would not have to train the supervisor for another 23 months.

Note: Here are some considerations for this category:

· the employer should require some evidence of the training such as a certificate of completion.

· the training must have met the specific requirements of AB 1825 to qualify.

· To avoid any of the issues discussed above, the employer may elect to treat the supervisor as if never trained and train the supervisor within six months from the hire date. This can be done even though it may be more than two years from the date the supervisor was last trained at another employer.

· Created: businesses created after January 1, 2006 with 50 plus employees and contractors must train supervisors within six months of the employer’s start date and then train the supervisors every two years after their last training.

· Expanded: businesses that expand to the 50 employee/contractor threshold must train supervisors within six months of the date the employer reached the threshold and then train the supervisors every two years after their last training.

DOCUMENTATION & RECORD KEEPING

1. Training Information

Employers must keep documentation of the harassment training to track compliance. The information must include the:

· name of the supervisor trained,

· date of training,

· type of training, and

· name of the trainer, educator or instructional designer.

2. Retention of records

Employers must retain the records for a minimum of two years. This means that record-keeping is a requirement. Therefore, if the employer uses classroom or webinar training, the employer needs to be sure it can find the trainer and a copy of the course if litigation occurs. For e-learning, it’s should not be an issue because all this information is stored electronically.

COMPLIANCE

Employers who fail to train are not automatically liable in any action alleging sexual harassment. But, if an employee complains, the FEHC Commissioner "shall" issue an order that requires the employer to comply with AB 1825. And, if an employer complies with the new law, it does not insulate the employer from liability for sexual harassment of any current, former employee or applicant.

When the author of AB 1825 was asked why there were not tougher sanctions for a failure to train, she replied that the “best penalty is a plaintiff’s lawyer.” This should be a warning to employers. Failure to train will be plaintiff’s exhibit number one should an employer be sued for harassment, discrimination, or retaliation.