As a labor and employment attorney, it’s kind of my job to pay attention to the constant changes in the law. These changes can sometimes be confusing to navigate, expensive to implement, and frustrating to employers and employee alike. But, that’s not always the case! One recent update that I think is good for everybody? California’s updated harassment prevention training requirements, which were announced this year.
California has long been one of the most protective states toward employees. In the early 2000s, California set the standard for the nation, combating harassment in the workplace by rolling out Assembly Bill 1825, which was made law under state Government Code section 12950.1. Under this law, the general rule was that California employers with fifty (that’s 5-0) employees or more in any part of the country were mandated to hold harassment prevention training for supervisory employees every two years.
This was a huge step in the right direction at the time, but in the era of the Me Too and Time’s Up movements, it needed a little updating.
“But Liv, this sounds great, what do you mean it needed updating?” Well, think of how many local businesses you visit on a daily or weekly basis (restaurants, salons, mechanics, etc.). Now think about the likelihood of these businesses having more than fifty employees. Pretty slim chances, right? And on top of that, even if they do employee fifty or more people, only supervisors were required to be trained; there was no requirement for non-supervisory employees. This left a ton of holes open in this mandate, and that’s what needed to change.
I pay attention to these changes in the law because they help my clients stay outta trouble. But with this particular update in law, I also feel inclined to tell you about it, because I think it’s so important. And before you ask me to come down from my soapbox, let me throw this out there: the change was so wide-sweeping, it probably affects you, whether you’re an employee or an employer! So let’s dig in, shall we?
The Size of the Covered Businesses Has Changed
California’s new training requirements apply to businesses with FIVE (5) or more employees. That’s right, this update massively dropped the threshold for training from fifty (50) to five (5). Remember those local businesses we were talking about? They’re probably included here now.
One question I’ve gotten a few times is “how do I count my employees?” It’s a really good question! For calculating your employee count here, both full-time and part-time employees should be counted. If you have “temporary” or “seasonal” employees, they should be counted, too. If you’re the owner of the business and you’re on the payroll as an employee, you should count yourself, as well.
And you know what? You should count your independent contractors, too. The text of the law says an employer may be a person who is “regularly employing five or more persons or regularly receiving the services of five or more persons providing services pursuant to a contract.” This is an important distinction!
So long story short, if you’re paying somebody to work for you, count ‘em!
The Rank of Covered Employees Has Changed
As I mentioned, before the change in law, only supervisors had to be trained. Because apparently only supervisors can prevent harassment…?
In 2019, we’re recognizing that that’s totally bogus. Everybody can prevent harassment! And because that’s true, this update in the law now makes it so that allllll employees must be trained in harassment prevention. But, there’s still a little bit of a catch here. Supervisory employees are required to do two (2) hours of training, whereas all non-supervisory employees are only required to do one (1) hour of training.
So what’s the distinction? Per the California Department of Fair Employment and Housing, a supervisory employee is “anyone with authority to hire, fire, assign, transfer, discipline, or reward other employees. A supervisor is also anyone with the authority to effectively recommend (but not necessarily take) these actions if exercising that authority requires the use of independent judgment.” Couldn’t have said it better if I tried.
The Frequency of Training Has NOT Changed
One thing that hasn’t changed since this update is the frequency of training. This training only needs to be given every two (2) years. That said, any good training will encourage employers and supervisors to revisit what is being taught as frequently as possible. Because who actually remembers anything they learned more than a year ago?
This is where I want to pause and bring something to your attention that’s not new: employers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Fair Employment and Housing Act. An affirmative duty means that it will require effort (meaning: you gotta be proactive) to satisfy the duty.
Specifically, employers MUST develop and distribute to employees a written harassment, discrimination, and retaliation prevention policy.
This is where you need to lay out a ton of important info, including but not limited to: who’s covered under the Act, what the employer’s complaint policy looks like, how employees can report an issue about their immediate supervisor, and more.
This written policy is great to revisit with your employees annually, along with your training materials, even if it’s not required.
Another great question I’ve been asked is “when do I train employees who’ve been hired after I’ve already conducted my business’ biennial training?” You need to train your workers within six (6) months of their “assumption of the position,” or in other words, their date of hire. So in theory, if you hold one training session in December and one the following July for anyone who wasn’t trained previously, you should be fine. The exact dates might require a little bit of tweaking to make that scenario work, but you get the idea: you can do this in cycles, either every 6, 4, or 3 months.
When To Complete the Training
If I’ve talked to you about this training prior to August 30, 2019, disregard what I told you about training deadlines. Originally, this training needed to be completed by January 1, 2020. But as of August 30, when Governor Newsom signed Senate Bill 778, the deadline has been extended to January 1, 2021. I guess sometimes procrastinating doesn’t bite you in the behind!
What to Look for In a Training
If you haven’t caught on by now, this law is an update to existing training requirements; there are still other laws that are in play for what’s required in a workplace training! In 2015, a law went into effect that requires a component about preventing “abusive conduct,” and in 2018, a different law went into effect that expanded training to include a component about gender identity, gender expression and sexual orientation.
So if you’re an employer and you need to train your employees, this is what you should look for in a training:
Training in a classroom setting, through interactive digital learning, or through a live webinar. A digital training must provide instructions on how to contact a trainer who can answer questions within two business days. The training should include the following topics:
- The definition of sexual harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964
- Other statutes and case-law prohibiting and preventing sexual harassment
- The types of conduct that can be sexual harassment
- The remedies available for victims of sexual harassment
- Strategies to prevent sexual harassment
- Supervisors’ obligation to report harassment
- Practical examples of harassment
- The limited confidentiality of the complaint process
- Resources for victims of sexual harassment, including to whom they should report it
- How employers must correct harassing behavior
- What to do if a supervisor is personally accused of harassment
- The elements of an effective anti-harassment policy and how to use it
- “Abusive conduct” under Government Code section 12950.1, subdivision (g)(2)
- Discuss harassment based on gender identity, gender expression, and sexual orientation, which shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation
And the training must include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions.
What to Do If You’re An Employee
If you’re an employee and you want to be proactive about this, ask your supervisor when they’ll conduct their next training! They’ll either know about this requirement… or they won’t. Lucky for you, we’ve got tips for either scenario.
If your employer does know about this training and you think they could take their prevention a step further, encourage them to look into independent organizations and reporting platforms like WeVow, Spot, and #NotMe. These platforms equip organizations to do right by their employees, to take a stand against misconduct in the workplace, and put the power back into employees’ hands.
If your employer does not know about this requirement, don’t freak out; a LOT of employers I’ve spoken with aren’t aware of this. Feel free to forward this article to them! And they can always reach out to my team at holler@wilkmazz.com if they want to take advantage of a free 30-minute consultation to talk this out.
Wrapping Things Up
I hope this has been an illuminating read! But, if you have any lingering questions, feel free to send my team an email at holler@wilkmazz.com. Cultivating a healthy workplace culture is always worth the investment, and we’re happy to help you with it however we can!