Final Supervisor Training Regulations

The California Fair Employment and Housing Commission (FEHC) finalized its harassment training regulations in August 2007:

• Clarify when an employer must count "persons providing services pursuant to a contract" in its workforce in determining whether it has the requisite 50 or more "employees" to trigger coverage. Such a person is called a "contractor" and must provide services for each working day in 20 consecutive weeks in the current calendar year or preceding calendar year.
• Training is required only for Supervisors or supervisory employees located in California. Attending training does not create an inference that an employee is a supervisor, or that a contractor is an employee or a supervisor.
• Defines an "Instructional Designer" as an individual with expertise in current instructional best practices, and who develops the training content based upon material provided by a Subject Matter Expert.
• Defines a "Qualified Trainer" as an individual who either through formal education and training or substantial experience can effectively lead in-person or webinars. If the qualified trainer is also a "Subject Matter Expert" the qualified trainer may answer questions and provide immediate feedback to training participants. If the qualified trainer is not a Subject Matter Expert, then a Subject Matter Expert shall be available to answer questions and provide feedback either during the training session or within two business days.
• Defines a "Subject Matter Expert" as one who is qualified to train about:
• What are unlawful harassment, discrimination and retaliation under both 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;
• The employer's obligation to investigate a complaint;
• What constitutes retaliation and how to prevent it;
• The essential components of an anti-harassment policy; and
• The effect of harassment on victims, co-workers, harassers and employers.
• Change the duration requirements for e-learning programs.
• E-learning programs must take the supervisor no less than two hours to complete. They must be written, developed and approved by an instructional designer(s), qualified trainer(s) or subject matter expert(s).
• Specify new requirements for e-learning.
• An e-learning program shall provide a link, or directions on how, to contact directly trainers or educators, either working for the employer or retained by the e-learning provider. These trainers or educators shall be available to answer questions and to provide guidance and assistance on harassment training issues within a reasonable period of time after the supervisor asks the question, but no less than two business days after the question is asked.
• Specify new requirements for webinar training.
• A qualified trainer must teach a webinar. The employer utilizing a webinar must document and demonstrate that each supervisor who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated with the training's interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities. The webinar must provide the supervisors an opportunity to ask questions, to have them answered and otherwise to seek guidance and assistance.
• Specify new requirements for all training methods.
• For any of the above training methods, the instruction shall include questions that assess learning, skill-building activities that assess the supervisor's application and understanding of content learned, and numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain engaged in the training. Minimum training segments for classroom and webinar training must be one-half hour. E-learning programs may allow supervisors to pause at any point so long as the total program is at least two hours duration.
• Employers may use either of two methods or a combination of the two methods to track compliance:
• "Individual" Tracking: An employer may track its training requirement for each supervisory employee, measured two years from the date of completion of the last training of the individual supervisor.
• "Training year" tracking: An employer may designate a "training year" in which it trains its supervisory employees and thereafter must again retrain all of its supervisors by the end of the next "training year," two years later, even those newly hired or promoted supervisors that received training in the prior year. Under the training year method, no supervisor shall be retrained any later than 6 months from the anniversary date of his or her last training. Thus, with this method, assume that an employer trained all of its supervisors in 2005 and sets 2007 as the next training year and that a supervisor received his initial training on May 31, 2005. That supervisor must be re-trained by November 30, 2007. In addition, the employer hired a new supervisor in February 2006 and provided the training on July 10, 2006. That new supervisor must still be trained during the 2007 training year.
• Training documentation must include the name of the supervisory employee trained, the date of training, the type of training, and the name of the training provider. It must be retained for a minimum of two years.
• Provide that expanding business must train supervisors within six months of reaching 50 employees.
• Permit an employer to recognize a new supervisor's training received within the previous two years from another employer, and schedule subsequent training based on that prior training date. If the prior training was provided by another employer, the employee must be given a copy, and required to read and to acknowledge receipt of the new employer's anti-harassment policy within six months of assuming the supervisor's new supervisory position.
• The training must use hypotheticals or examples that illustrate the course content and involve the supervisor through questions, problem-solving, and quizzes to insure that the information is understood.

The training content must be designed to 1) assist California employers in changing or modifying workplace behaviors that create or contribute to "sexual harassment" as that term is defined in California and federal law; and 2) develop, foster and encourage a set of values in supervisory employees who complete mandated training and education that will assist them in preventing and effectively responding to incidents of sexual harassment. It must include, but is not limited to:

• The definition of unlawful sexual harassment under California and federal law, which may be accompanied by a definition and training about other forms of harassment covered under state law and how harassment of an employee can violate their rights as a member of more than one protected class;
• State and federal statutory provisions and case law principles concerning the prohibition against in the prevention of unlawful sexual harassment in employment;
• The types of conduct that constitute sexual harassment;
• Remedies available for sexual harassment;
• Strategies to prevent sexual harassment in the workplace;
• Practical examples such as factual scenarios taken from case law, news and media accounts, hypotheticals based on workplace situations and other sources which illustrate sexual harassment, discrimination and retaliation using role-playing, case studies and group discussions;
• The limited confidentiality of the complaint process;
• Resources for victims of unlawful sexual harassment such as to whom they should report any alleged sexual harassment;
• The employer's obligation to conduct an effective workplace investigation of a harassment complaint;
• Training on what to do if the supervisor is personally accused of harassment;
• The essential elements of an anti-harassment policy and how to utilize it if a harassment complaint filed. Either the employer's policy or a sample policy must be provided to the supervisors. Regardless of whether the employer's policy is used as part of the training, the employer shall give each supervisor a copy of its anti-harassment policy and require each supervisor to read and to acknowledge receipt of that policy.