Tuesday, Jan 1, 2019

Employers must provide sexual harassment prevention training to all employees by Jan. 1, 2020

Reprinted with permission from California Dental Association

Gov. Jerry Brown last September signed a bill requiring California employers of five or more employees to provide expanded training on sexual harassment prevention to all of their employees by Jan. 1, 2020. Practically speaking, this means employers will need to complete the mandatory one- or two-hour trainings for employees in 2019 to be compliant by the January 2020 deadline.

Crafted in response to renewed attention on sexual harassment in the workplace, brought on in part by the #MeToo movement that gained national traction in fall 2017, the new law is a dramatic shift from current requirements that have been in place for more than a decade. The Legislature concluded that millions of employees in the state may not be aware of their rights and responsibilities under California anti-harassment laws or trained on how to detect and report inappropriate behaviors. The new sexual harassment prevention training requirement impacts the majority of businesses in the state and all of their employees and managers.

Main points for employers

• Employers with at least five employees, in order to comply with the new requirements, must provide by Dec. 31, 2019: (1) at least two hours of sexual harassment prevention training to all managerial employees and (2) at least one hour of sexual harassment prevention training to all nonmanagerial employees.
• After the 2019 compliance requirements are met, employers must provide training every two years at minimum.  
• Training must occur within six months of hire to a nonmanagerial position or promotion to a managerial position (including hiring) as applicable.
• Newly created businesses with five or more employees or contractors must provide training within six months of the business’ establishment and then every two years thereafter.
• Part-time, temporary and independent contractors must be included toward the minimum count of five employees.
• The training may be conducted as a group presentation or on an individual basis and may be broken into shorter time segments as long as the two-hour requirement for managerial employees and one-hour requirement for nonmanagerial employees are met.
• Employees hired after Jan. I, 2020, who received training by a previous employer need only be required to read and acknowledge receipt of the employer's anti-harassment policy within six months of assuming the new position. The burden of establishing that the prior training was legally compliant with this section is on the current employer.

Training for seasonal and temporary employees

Also by the January 2020 deadline, employers must provide training to temporary and seasonal employees, as well as any employee who is hired to work for less than six months. The training must occur within 30 calendar days after the hire date or within 100 hours worked, whichever comes first. In the case of temporary employees employed by an agency (as defined by Lab. Code sec. 2810.3) to perform services for clients, the training must be provided by the agency, not the client.

Training formats

Employers can satisfy this training by offering classroom training, e-learning or webinars as described here.

Classroom training: In-person classroom training that features content created by a trainer. The employees receive the training from a trainer in a setting that is removed from the employees’ daily duties. California law in CCR sec. 11024(a)(9) specifically defines the credentials that a qualified trainer must possess.

E-learning: Individualized, interactive and computer-based training that was created by a trainer and an instructional designer. Employees must have the opportunity to ask a trainer questions and receive a response within two business days.

Webinar: An internet-based seminar that features content created and taught by a trainer and that is transmitted over the internet in real time. Employers who use a webinar for training must document that each employee who is not physically present in the same room as the trainer attended the training. They must also document that the employee actively participated in the training’s interactive content, discussion questions, hypothetical scenarios, polls, quizzes or tests and activities. Webinars must provide employees with the opportunity to ask questions and receive answers to those questions or otherwise seek guidance and assistance.

The regulations also authorize other effective, interactive training — including audio, video or other computer technology — but only if used along with, and as a supplement to, classroom, webinar or e-learning training.

Record-keeping requirements

To track compliance, employers must keep documentation for a minimum of two years and be able to provide copies upon request.

The training record must include all of the following minimum information:

• The name of the supervisor who received training
• The training type and date
• The attendance sign-in sheet
• A copy of all certificates of attendance or completion issued
• A copy of all written or recorded materials that comprise the training
• The training provider’s name

In addition to the above, specific documentation requirements for both trainers and employers are mandated for e-learning and webinar training:

• E-learning: The trainer must maintain all written questions received and all written responses or guidance provided for a period of two years after the date of the response.
• Webinars: The employer must maintain a copy of the webinar, all written materials used by the trainer and all written questions submitted during the webinar. The employer must also document all written responses or guidance the trainer provided during the webinar.

Government obligations

The Department of Fair Employment and Housing must develop or obtain two online training courses on the prevention of sexual harassment in the workplace in accordance with the provisions of the law. Both courses must contain an interactive component that requires viewers to periodically answer questions in order for the course to continue to play. The DFEH published a new online resources webpage for California employers (www.dfeh.ca.gov/resources-for-employers) and expects to have such trainings available by late 2019.

Preparation and planning

Employers with five or more employees should check their calendars and determine when they can train their employees in 2019 in order to be compliant with the law by the Jan. 1, 2020, deadline.

Employers might begin by researching third-party companies that are qualified to conduct training under DFEH regulations for either in-person or online training. Before deciding to utilize a company, the employer should verify that its training meets the requirements outlined above.

Directing employees to online training courses hosted by DFEH is another way employers can satisfy their harassment prevention training obligations. Regardless, the unavailability of a specific training should not preclude employers from satisfying the requirement sooner rather than later.

Developing a written harassment, discrimination and retaliation prevention policy that reflects current law is a requirement under California law. A policy can be found in CDA Practice Support’s “Sample Employee Manual” template.

• Find resources on employment practices at www.cda.org/practicesupport.

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