What are the final sexual harassment supervisor training regulations?

Do the regulations apply to my company?

You must provide sexual harassment to all supervisors if your company has 50 or more employees - anywhere, not just in California. The state of California or a political subdivision thereof (local agencies, counties, public school districts, etc.) is also an employer under these regulations.

What is a supervisor or supervisory employee?

An employee who works in California means any individual having the authority, in the interest of the employer, 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 such action to the employer. The exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

How do I determine if I have "50 or more" employees?

Employees include full-time, part-time, and temporary workers or contractors for each working day in any twenty consecutive weeks in the current calendar year or preceding calendar year. The 50 individuals do not need to work at the same location or within the state of California.

I hire independent contractors as well as employees, do they count towards the 50 employee minimum?

Yes, a contractor who performed services for your company for each working day in 20 consecutive weeks in the current or preceding calendar year counts towards the 50 employee minimum.

How long must the supervisor training last?

The training must take the supervisor no less than two hours to complete. The training need not be for two consecutive hours, the minimum duration of a training segment is no less than one half hour for classroom training or webinars. E-learning courses may include features allowing the supervisor to pause the training so long as the e-learning program cannot be completed in less than two hours.

What is classroom training?

Also referred to as "in-person" training, classroom training is instruction whose content is created by a trainer and provided to supervisors by a trainer, in a setting removed from the supervisor's daily duties.

What is webinar training?

An Internet based seminar whose content is created and taught by a trainer and transmitted over the Internet or an intranet in real time. Employers using a webinar for training must document that each supervisor who was not physically present in the same room as the trainer actually attended the training and actively participated in it.

What is E-learning training?

E-learning is individualized, interactive, computer-based training created by a trainer and an instructional designer. Supervisors must have the opportunity to ask a trainer questions and get a response within two business days after the question is asked.

Can we provide training other than classroom, webinar or e-learning?

The regulations authorize other effective interactive training including audio, video, or other computer technology only in conjunction with classroom, webinar or e-learning training.

What is a trainer?

A trainer, or educator, is qualified to provide sexual harassment training for supervisors who has the training and experience about the following:

1. What unlawful harassment, discrimination, and retaliation are as defined by California and federal law.
2. What steps to take when harassing behavior occurs in the workplace.
3. How to report harassment complaints.
4. How to respond to a harassment complaint.
5. The employer's obligation to conduct a workplace investigation of a harassment complaint.
6. What constitutes retaliation and how to prevent it.
7. Essential components of an anti-harassment policy.
8. The effect of harassment on harassed employees, co-workers, harassers, and employers.

How can I tell if someone is a qualified trainer?

The regulations specify three categories of qualified trainers:

1. Attorneys admitted to the bar of any state for two or more years whose practice includes employment law under the California Fair Employment and Housing Act (FEHA) and/or Title VII of the federal Civil Rights Act of 1964; or
2. Human Resource Professionals or Harassment Prevention Consultants with a minimum of two years with practical experience in one or more of the following:
a. Designing or conducting discrimination, retaliation, and sexual harassment prevention training; or
b. Responding to sexual harassment complaints or other discrimination complaints; or
c. Conducting investigations of sexual harassment complaints; or
d. Advising employers or employees regarding discrimination, retaliation and sexual harassment prevention.
3. Professors or instructors in law schools, colleges, or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years experience teaching about employment law under FEHA or Title VII at a law school, college, or university.

What is an instructional designer?

Instructional designers have expertise in current instructional practices and develops the training content based upon material provided by a trainer.

How often do my supervisors need to be trained?

You must provide a minimum of two hours of training once every two years. You can track compliance in either of the following methods or a combination of the two:

1. Individual Tracking - Each supervisory employee must be trained no later than the 2 year anniversary date of his or her prior training. For example, a supervisor who took sexual harassment training on July 1, 2005, must complete her training in 2007 no later than July 1, 2007.
2. Training Year Tracking - Employers may designate a "training year" when all sexual harassment training is completed. All supervisors must complete their training by the end of the designated training year. For example, if supervisors were initially trained in 2005, you may designate 2007 as your training year and those supervisors trained in 2005 must complete their training by the end of 2007.

When do new supervisors need to be trained?

A newly hired supervisor or an individual who has promoted to a supervisor role must be trained within six months of hire/promotion and every two years after that using either the individual or training year tracking method. If using the training year tracking method, newly hired or promoted supervisors who receive training within six months of hire/promotion and that training falls in a different training year, the employer may include them in the next group training year, even if that occurs sooner than two years. For example, if all supervisors were trained in 2005 and 2007 is the "training year" a new supervisor trained in 2006 would need to be trained in 2007 with the employer's other supervisors to keep them on track, or the new supervisor would have to be trained no later than the two year anniversary date of her original training.

I hired a new supervisor who was trained by their previous employer, do I still need to train them within six months of hire?

The burden of proving that any training received by an employee is compliant is on the current employer, so you must be able to demonstrate that the training the new employee received was sufficient under these regulations. If you are able to do so, you can wait until the employee's two year training anniversary, based on the training date with the prior employer. However you must still give the employee a copy of your anti-harassment policy and acknowledge receipt thereof within six months of hire/promotion to the supervisory position. CalChamber recommends providing your own sexual harassment training to new supervisors and ensuring they are on the same tracking method as the rest of your supervisors.

What sort of documentation must I keep relating to this training?

You must maintain documentation for a minimum of two years of the name of the supervisory employee trained, the date of the training, and the name of the training provider.

I started a new business in 2006 with more than 50 employees, when do I need to provide training?

Businesses created after January 1, 2006 having more than 50 employees as defined above must provide sexual harassment supervisor training within six month of their establishment and every two years thereafter using one of the above tracking methods. Businesses created before January 1, 2006 that expand beyond 50 employees must provide sexual harassment supervisor training within 6 months after they become eligible under these regulations and every two years thereafter.

What if I do not provide this training to my supervisory employees?

The Fair Employment and Housing Commission may issue an order that compliance with these regulations occur within 60 days of the order.

What if my supervisors were trained in 2007 before these regulations were final?

An employer that has made a substantial good faith effort to comply with the sexual harassment supervisor training requirements before the effective date of the regulations will be deemed in compliance.

What does the training have to include?

For any training method, the instruction shall include:

1. Questions that assess learning;
2. Skill-building activities that assess the supervisor's application and understanding of content learned; and
3. Numerous hypothetical scenarios about harassment, each with one or more discussion questions so supervisors remain in the training.

The content that must be included, at a minimum, is:

1. A definition of unlawful sexual harassment under FEHA and Title VII;
2. FEHA and Title VII statutory provisions and case law principles concerning the prohibition against and the prevention of unlawful harassment, discrimination, and retaliation in employment;
3. The types of conduct that constitute sexual harassment;
4. Remedies available for sexual harassment;
5. Strategies to prevent sexual harassment in the workplace;
6. Practical examples and hypotheticals based on workplace situations and other situations that illustrate sexual harassment, discrimination, and retaliation using training modalities such as role plays, case studies, and group discussions;
7. The limited confidentiality of the complaint process;
8. Resources for victims of sexual harassment, such as to whom they should report alleged harassment;
9. The employer's obligation to conduct an effective workplace investigation of a harassment complaint;
10. Training on what to do if the supervisor is personally accused of harassment;
11. The essential elements of an anti-harassment policy and how to use it if a harassment complaint is filed;
12. Either the employer's policy or a sample policy must be provided to supervisors as part of the training;
13. Regardless of whether the employer's policy is used as part of the training, the employer must give each supervisor a copy of its anti-harassment policy and require each supervisor to read and acknowledge receipt thereof.