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New California Law Mandates Anti-Harassment Prevention Training for Supervisors

Jackson Lewis has long advocated training for managers as an effective method of preventing sexual harassment.  On September 30, 2004, California Governor Arnold Schwarzenegger enacted AB 1825, a bill that now requires certain California employers to provide two hours of sexual harassment training every two years. 

Which Employers Are Covered?

The law defines a covered "employer" as one that employs 50 or more persons, which includes temporary service employees and independent contractors. The law does not specify that the 50 employees must be within California.  That means that an employer with 50 total employees may be covered by the law, even if just a few workers are in California.

What Training Is Required?

The law provides general guidance concerning the scope of the training. The training must include "information and practical guidance" regarding federal and state laws that prohibit sexual harassment, including prevention and correction of harassment, and remedies available to victims. The statute specifically requires employers to use "practical examples" aimed at preventing harassment. The training must be presented by "trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation."

Significantly, the training must be in a classroom or an equally effective interactive environment.  Because of the term "interactive," a video presentation alone without questions and answers, role playing, and other interactive methods may be insufficient.

Who Must Receive Training?

The law will cover most employees who have some supervisory authority.  The Fair Employment and Housing Act defines "supervisor" broadly to include "any individual having the authority . . . 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 that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment."  Therefore, even employees who merely recommend the above personnel actions may be deemed "supervisors" who must receive training.

When Must Training Be Completed?

The law requires ongoing training after January 1, 2006 for all supervisors, such that they receive at least two hours of anti-harassment training every two years. For those supervisors employed as of July 1, 2005, the initial two hours of training must be completed by January 1, 2006. Supervisors who have received training after January 1, 2003 need not be re-trained by January 1, 2006. (Future bi-annual training will still be required). With regard to supervisors hired or promoted into supervisory positions after July 1, 2005, the training must be completed within six months of hire or promotion to a supervisory position.

Liability Under the New Law

The new law provides that employers who fail to conduct the training as required may be ordered to do so by the Department of Fair Employment and Housing.

The law also says that providing training in accordance with AB 1825 is not a defense to a sexual harassment claim.  Conversely, a supervisor's failure to receive training does not establish liability for harassment under the Fair Employment and Housing Act.  Nevertheless, plaintiffs' lawyers likely will argue that the failure to comply with this law should be evidence in favor of an award of punitive damages, as it shows "reckless disregard" for the law.

Finally, the law makes clear that it sets minimum standards and employers are free to implement more rigorous or frequent preventive measures.  This provision also means employers will no longer be considered proactive for merely conducting supervisory training every two years, since the law requires such training.

What Should Employers Do?

 Employers have until January 1, 2006 to make arrangements to implement AB 1825.  Before then, employers should:

• Purchase or develop live or other interactive training (via the Internet or other interactive technology);
• Develop a means to monitor compliance and ensure new supervisors are trained within six months of hire/promotion and every two years thereafter;
• Ensure there is a system for recordkeeping to demonstrate compliance;
• Update policies and procedures to include reference to and documentation of adequate training;
• Ensure executives are aware of this requirement and that they account for the time and financial commitment that will be involved in training supervisors in accordance with the new law.

About Jackson Lewis

Jackson Lewis is one of the nation's leading law firms dedicated to representing management exclusively on workplace issues. With 360 attorneys practicing in 21 offices throughout the U.S., the firm has a national perspective and an awareness of local business environments.

Jackson Lewis has developed a particular expertise developing and conducting anti-harassment training.  The firm's Workplace Law Institute is devoted to management education in all areas of employment, labor and benefits law. This training can be delivered through a variety of formats including Executive Briefings and "Train the Trainer" sessions. The Workplace Law Institute also provides online training with interactive web-based components. These electronic offerings have the capability to track a supervisor's completion of the session.

If you would like further information about Jackson Lewis' training capabilities, please contact the attorney with whom you work or Michael J. Lotito, who chairs the Workplace Law Institute.  Mr. Lotito is a senior partner at Jackson Lewis and a former Chairman of the Board of Directors of the Society for Human Resources Management (SHRM).