California Employers Granted a One-Year Reprieve on New Mandatory Sexual Harassment Training Deadline

If you are scrambling to comply with the new California sexual harassment training requirements, we have some good news: with some exceptions, employers have another year to put those plans in place. Under prior law, which took effect late last year, California employers with five or more employees were required to provide sexual harassment training to all employees prior to January 1, 2020. This deadline has been extended to January 1, 2021 through the passage of SB 778. Newly amended Government Code 12950.1(a) now requires that employers with five or more employees provide at least one hour of training to all nonsupervisory employees, and two-hours of training to all supervisory employees, no later than December 31, 2020.

However, seasonal and temporary employees who are hired to work for less than six months must be trained within 30 calendar days of hire or 100 hours worked, whichever occurs first, beginning January 1, 2020. A staffing agency which employs temporary employees for third-party clients must train such employees, rather than relying on the client to do so. 

SB 778 also specifically clarifies that supervisors and non-supervisors trained in 2019 need not be retrained until 2021, and every two years thereafter. Starting in January 2021, newly hired employees must be trained within six months of their hire date, and newly promoted supervisors must be trained within six months of assuming the supervisory position. As drafted, the law imposes the training requirement on the employer – not the employee – meaning the code language does not authorize an employer to rely on an employee’s training at a prior employer to fulfill the training requirement

Prior California law on sexual harassment training only applied to employers with 50 or more employees, and did not require training for non-supervisory employees. Government Code 12950.1(a) now applies the training requirement to employers with five or more employees. Full time, part time, and temporary employees are included in this employee count, regardless of whether they work at the same location or work or reside in California. The employer is responsible for providing the training at its own cost. Training must occur as part of employment and not be required during personal time, meaning employees must be compensated for attending the training. If employees are not trained by January 1, 2021, an employer is vulnerable to an investigation by the Department of Fair Employment and Housing (DFEH), and could be subject to a court order to comply.

Employers must keep training documentation for at least two years, including the names of attendees trained, the date of the training, a sign-in sheet, a copy of all attendance or completion certificates issued, a description of the type of training, a copy of any written or recorded training materials, and the trainer’s name.

The training can be conducted live or online, and can be combined with other trainings. Many employers find that in-person training is more impactful and effective, particularly because it can be specifically tailored to the employer’s own workforce. Often, employers elect to alternate between live and online training programs. Either way, sexual harassment training must be interactive, which may include classroom, e-learning (computer-based), webinar (internet-based), or other audio, video, or computer training, including any combination of such training types. To ensure adequate participation and sufficient understanding of the content, the training should include activities such as discussion questions, hypothetical examples, or quizzes. E-learning or webinar training must include an opportunity for attendees to ask questions or seek further guidance, and the trainer or employer must retain all written questions received and written responses provided for two years.

The training must be conducted by an attorney or other qualified trainer experienced and knowledgeable in harassment, discrimination, and retaliation prevention. The goals of the training are to help employers change or modify workplace behaviors that cause or contribute to sexual harassment, to educate attendees on the negative impact of abusive conduct, and to assist supervisors in preventing, responding to, and addressing harassing conduct.

Consistent with those goals, the training must incorporate the following components and provide practical examples of each:

• Definitions of unlawful harassment under the California Fair Employment and Housing Act (FEHA) and Title VII of the federal Civil Rights Act of 1964;
• Federal and state statutes and case law principles;
• Types of harassing conduct;
• Available remedies to victims and potential employer and/or individual liability;
• Workplace strategies to prevent harassment;
• Supervisors’ duty to promptly report any harassment, discrimination, and retaliation without delay;
• Practical examples (hypotheticals or facts from cases, news outlets, or other media) of harassment, discrimination, and retaliation;
• Limited confidentiality of the complaint and investigation process;
• Resources for harassment victims, such as to whom complaints may be made;
• Appropriate steps to remedy harassment, including the employer’s responsibility to conduct an effective workplace investigation upon receiving a harassment complaint;
• What to do when someone accuses a supervisor of harassment;
• Essential elements of an anti-harassment policy and its application to a filed complaint; and
• Definition of abusive conduct as defined by Government Code 12950.1(i)(2), including its negative effects and consequences on victims and others in the workplace.

The DFEH has begun offering trainings conducted by a DFEH representative (here). For all employers, the DFEH has created some basic training slides (available here https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/SexualHarassmentandAbusiveConductPreventionTrainingToolkit.pdf) and anticipates providing online training courses by late 2019.

Prior to investing employee time and resources into a training program, employers are encouraged to consult with their employment counsel to insure their proposed program is compliant.

Holly L. Sutton is a partner in Farella Braun + Martel’s San Francisco office and chairs its Employment Law Practice.