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Mandatory Supervisor Harassment Prevention Training

California employers with 50 or more employees must provide sexual harassment prevention training to all supervisors in California. Training must take place within six months of hire or promotion and every two years thereafter. The minimum employee count of 50 includes part-time and temporary employees, including those who are hired through temporary staffing agencies, and independent contractors. The employer is covered if there are 50 or more employees employed each working day in any 20 consecutive weeks in the current or preceding calendar year. Because the law does not specify that the 50 employees must be within the state, it applies to California employers with 50 employees total, including those outside the state.​ If your business expands to 50 employees and/or contractors and becomes subject to this California law, you must provide training to supervisors within six months of their eligibility and every two years thereafter. Similarly, if you are a newly created business with fifty or more employees and/or contractors, you must provide training to supervisors within six months of your establishment and then every two years thereafter. You must provide training to all employees with supervisory authority. “Supervisory authority” generally includes anyone possessing the authority to exercise independent judgment to:

• Hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees
  
• Direct other employees’ work or adjust their grievances
  
• Effectively recommend any of these actions
  

Employees who make recommendations to managers about such matters must receive training if those recommendations are likely to result in managers taking employment actions. The harassment prevention training must include information and practical guidance about federal and state sexual harassment laws, including harassment prevention and correction and remedies that are available to victims. The training must be “interactive,” meaning that video training is not sufficient without discussion, role-playing, a question-and-answer session or other similar techniques led by a qualified trainer. An employer with a multi-lingual workforce should take additional steps to make sure that the training is clearly and effectively communicated to employees who speak a language other than English. An employer should make sure to translate policies and communicate them in the language(s) spoken by its workforce.

Meeting the harassment training requirements does not necessarily provide a defense against sexual harassment or a sexual harassment lawsuit. Failing to meet the harassment training requirements does not necessarily establish employer liability for harassing behavior under FEHA.

Tracking Harassment Training: State regulations permit employers to use individual tracking or training year tracking:

• Individual Tracking: You can track your training requirement for each supervisor on an individual calendaring basis. You measure two years from the date that the supervisor last completed training.
  
• Training Year Tracking: You can designate a “training year” in which you train your supervisors. You must retrain all supervisors every two years by the end of the designated training year, even those newly hired or promoted supervisors that received training in the prior year.
  

You may not need to retrain newly hired supervisors who received sexual harassment training from their previous employers. The regulations allow employers to accept an employee’s previous training as valid and to schedule the individual training based on the prior training date. However, the new employer must prove that the prior training was sufficient and meets the legal requirements of AB 1825. In addition, the supervisor must read and acknowledge receiving the new employer’s anti-harassment policy within six months of being hired or promoted.

Course Qualifications: Make sure that the course and curriculum meet the following criteria:

• Does the course provide a minimum of two hours of training, either in a classroom, a webinar or online through an e-learning program?
  
• Does the course provide interactivity through discussions, skill-building activities or quizzes so the supervisor is engaged throughout the training?
  
• Does the course include a qualified expert who is available to answer questions, whether face-to-face or using email?
  

Curriculum Content Qualifications: Make sure that the course contains each of the following AB 1825 required components:

• Does the curriculum contain FEHA and Title VII definitions of unlawful sexual harassment?
  
• Does the curriculum contain additional definitions, training and discussions of other forms of harassment that FEHA covers? (as specified in Government Code section 12940 (j))
  
• Does the curriculum contain a discussion about how sexual harassment can take several forms?
  
• Does the curriculum contain an explanation of FEHA and Title VII and case law principles about the prohibition against and the prevention of unlawful sexual harassment, discrimination and retaliation in employment?
  
• Does the curriculum contain examples of conduct that constitute sexual harassment, including practical examples that show true-to-life scenarios from case law, news and media accounts, hypothetical situations based on possible workplace interactions and other sources that illustrate sexual harassment, discrimination and retaliation through the use of role playing, case studies and group discussions?
  
• Does the curriculum contain information on the remedies available to employees for sexual harassment?
  
• Does the curriculum contain strategies to prevent sexual harassment in the workplace?
  
• Does the curriculum contain an explanation of the limited confidentiality of the harassment complaint process?
  
• Does the curriculum contain a listing of resources for sexual harassment victims and the steps they should take to report any alleged sexual harassment?
  
• Does the curriculum contain an explanation of your obligation to conduct an effective workplace investigation of a harassment complaint?
  
• Does the curriculum contain information on what to do if a supervisor is personally accused of harassment?
  
• Does the curriculum contain a discussion of the essential elements of an anti-harassment policy and how to use it if a complaint is filed?
  
• Does the curriculum contain a sample policy, whether generic or company-specific?
  

Harassment Training Documentation and Records Requirements:  A supervisor’s training record must include the following information:

• The supervisor’s name
  
• The training date
  
• The training type
  
• The training provider’s name
  

You must retain these records for a minimum of two years. You must be able to provide copies upon request.

Types of Harassment Training: There are four types of sexual harassment training:

• Classroom training: Also referred to as in-person training, classroom training features content that was created by a trainer. The supervisors receive the training from a trainer in a setting that is removed from the supervisor’s daily duties. California law 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. Supervisors must have the opportunity to ask a trainer questions and receive a response within two business days after asking the questions.
  
• Webinar: An Internet-based seminar that features content that is created and taught by a trainer and that is transmitted over the Internet or an intranet in real time. Employers who use a webinar for training must document that each supervisor who is not physically present in the same room as the trainer actually attended the training. Further, they must document that the supervisor actively participated in the training’s interactive content, discussion questions, hypothetical scenarios, quizzes or tests and activities. Webinars must provide supervisors with the opportunity to ask questions and receive answers to those questions or otherwise seek guidance and assistance.
  
• Other: The regulations authorize other effective, interactive training including audio, video or other computer technology only in conjunction with classroom, webinar or e-learning training.

Qualified Trainers: Check the trainer’s credentials to make sure that he/she meets the qualifications under the regulations. If you decide to use an online e-learning course, confirm that a qualified trainer and instructional designer wrote and created the material. The trainer must be one of the following:

• An attorney who has been admitted for two or more years to the bar of any U.S. state and whose practice includes employment law under FEHA and/or Title VII of the federal Civil Rights Act of 1964.
  
• A human resources professional or harassment prevention consultant who has a minimum of two years of practical experience in sexual harassment prevention training, responding to sexual harassment complaints, conducting harassment complaint investigations and advising employers or employees about discrimination, retaliation and sexual harassment.
  
• A professor or instructor in a law school, college or university who has a post-graduate degree or California teaching credential and 20 instruction hours or two or more years of experience teaching employment law under FEHA and/or Title VII of the federal Civil Rights Act of 1964.
  

Additional qualifications include knowledge of the following topics:

• What constitutes unlawful harassment, discrimination and retaliation, as defined by California and federal law.
  
• What steps to take when harassing behavior occurs in the workplace.
  
• How to report harassment complaints.
  
• How to respond to a harassment complaint.
  
• Your obligation to conduct a workplace investigation of a harassment complaint.
  
• What constitutes retaliation and how to prevent it.
  
• The essential components of an anti-harassment policy.
  
• The effect of harassment on harassed employees, co-workers, harassers and employers.