California employers with 50 or more employees have been required to train and educate their supervisory employees on sexual harassment prevention since 2005. However, as we reported in the beginning of the year, this law is being expanded effective January 1, 2020. By the beginning of next year, every California employer with five or more employees must provide at least two hours of sexual harassment prevention training to all supervisory employees, and at least one hour to non-supervisory employees. This training must be provided every two years.
These trainings can be completed as a group or individually, whichever may be more appropriate for the employer and employees. While the new law requires the Department of Fair Employment and Housing (DFEH) to provide online training courses which may be used to comply with this new law, DFEH does not anticipate these courses being widely available until later this year. In the meantime, DFEH has created a toolkit for employers to use, including a sample sexual harassment and abusive conduct prevention training manual. This toolkit can be found here by clicking on the links provided.
A training must explain:
- The definition of sexual harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964;
- The 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); and
- The concepts of harassment based on gender identity, gender expression, and sexual orientation, which shall include practical examples of harassment based on gender identity, gender expression, and sexual orientation.
Until the online courses are available, the new law requires that in person or webinar trainings with a trainer must be utilized. Typically, these trainers will be attorneys with at least two years of experience whose practice includes employment law; human resource professionals or harassment prevention consultants with at least two years of practical experience; and professors in law schools, colleges, or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two years of experience teaching employment law.
This training, whether it be one or two hours, may not occur during the employee’s personal time. This means the training must take place during work hours or some other time when the employee is compensated.
DFEH has issued guidance stating that those employers who are not in compliance by the January 1, 2020 deadline may be reported to DFEH by their employees. DFEH will review these complaints in light of all the circumstances, including whether DFEH’s online training course is available. In the event DFEH finds an employer is indeed not in compliance, DFEH will work with the employer to become compliant.
Employers should take care to ensure they are in compliance by the time January 1, 2020 rolls around. If you would like assistance organizing or running this required training, contact the attorneys at Navigato & Battin. We are qualified to act as trainers.