Employment Law Update

March 1, 2006

Highlight Article

Kring & Chung, LLP Participates in California's fair Employment Housing Commission Public Comment Hearing regarding California's Mandatory Sexual Harassment Training

By Monica Sanchez

On February 10, 2006, Kring & Chung, LLP attended the public hearing held before the California Fair Employment and Housing Commission (FEHC) to discuss the proposed regulations to AB 1825 requiring that California employers with 50 or more employees train their supervisors about sexual harassment.

Background

On December 16, 2005, the California FEHC issued draft regulations intended to clarify the requirements of AB 1825.  These regulations underwent a public comment period, which concluded with a public hearing in Los Angeles on February 10, 2006.  

The proposed regulations issued by the FEHC provide guidance on the following:

• Define “supervisor” for purposes of the required training by adopting the Fair Employment and Housing Act’s definition of an individual with authority, “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action… if the exercise of that authority is not of a merely routine or clerical nature, but requires independent judgment.”

• The proposed regulations further state that a supervisor does not need to be based in California to be subject to the training requirement.  Instead, an employer must train all supervisors who supervise at least one employee in California.

• Clarify the meaning of “50 or more employees,” and explain that only employers “employing fifty or more employees for each working day in any twenty consecutive weeks in the current calendar year or preceding calendar year” must comply with AB 1825.

• The required training at minimum should cover the following: a definition of unlawful harassment under California’s Fair Employment and Housing Act (FEHA) and  Title VII of the Civil Rights Act of 1964; explanations of FEHA and Title VII and case law concerning prevention of unlawful harassment; remedies available for harassment; strategies for preventing harassment; practical examples of harassment that employees can identify with; the complaint process and confidentiality that will be used in investigating complaints; resources for victims of unlawful harassment, including reporting information; effective investigation of complaints of harassment; how to handle personal accusation of harassment; and the employer’s anti-harassment policy and use.

• In regards to e-training, the proposed regulations require that the training allow the opportunity to ask questions and have them answered. There must also be some interactive component available once every 15 minutes.

• Explain that trainers and educators must be licensed attorneys, human resource professionals, psychologists, and other individuals who have legal education or practical experience in harassment training and knowledge of California laws prohibiting unlawful harassment.

Trainers must be qualified to cover the following subject areas: what lawful harassment is; how to intervene if harassing behavior occurs in the workplace; how to report complaints of harassment; how to respond to harassment complaints; how to investigate harassment complaints and an employer’s obligation to do so; the illegality of retaliation and how to prevent it from occurring; and the employer’s anti-harassment policy.

• The proposed regulations allow two methods for tracking compliance: 1) individual and 2) training year tracking according to designated training year. With individual tracking, the employer must train each supervisor within two years of the date the supervisor last completed the training.  With the training year tracking, the employer can designate a “training year” in which to train all supervisors (e.g. 2005, 2007, 2009).

• The proposed regulations require that training be two hours of seminar-type training, or the amount of time that the same content may be covered in an e-learning program for an average learner.  The proposed regulations clarify that the two hours do not need to occur in one session,  but should occur in increments of at least thirty minutes for classroom training and increments of at least fifteen minutes for e-training.

• AB 1825 requires that new supervisors receive the harassment training within six months of assuming a supervisory position.  The proposed regulations allow for an employer to use the “individual tracking” or “training year tracking” to train new supervisors.

Suggestions For Employers

The initial training for supervisors must have been completed by December 31, 2005.  However, the draft regulations specifically state that employers who made a substantial good faith effort to comply with AB 1825 by completing the supervisory training prior to the effective date of the regulations will be deemed to be in compliance.  Employers who have not completed their training and did not meet the deadline, must still comply with this requirement. 

Based on the comments that were made to the FEHC it appears that there will be revisions that will be made to the proposed regulations in order to better assist employers in complying with this law.  Kring & Chung, LLP will continue to monitor and report on the proposed regulations.  The FEHC is currently reviewing the comments that they received and will hopefully incorporate suggestions to clarify these regulations and better assist California employers in complying with AB 1825.

This article was prepared by Monica Sanchez  , who is an associate at Kring & Chung, LLP’s Irvine and San Diego office. You can reach Ms. Sanchez at msanchez@kringandchung.com  or at (949) 261-7700.

** The information contained herein is for informational purposes only and should not be relied upon in reaching a conclusion in a particular area. The legal principles discussed herein were accurate at the time this article was authored but are subject to change with time. Applicability of these same legal principles may differ substantially in individual situations. Please consult an attorney before making a decision in a particular area using only the information provided in this article.