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Proposed Regulations on AB 1825 Sexual Harassment Prevention Training Will Invite Public Comment

The California Fair Employment and Housing Commission is in the process of promulgating regulations in compliance with the California Administrative Procedure Act to provide more detailed guidance to employers on how to comply with Assembly Bill 1825 [California Government Code section 12950.1].  The regulatory process provides the opportunity for public comments on the Commission's proposals.  Accordingly, the proposed regulations may change significantly prior to their finalization and adoption. 

As California employers already know, AB 1825 requires employers doing business in California and employing 50 or more workers to provide sexual harassment prevention training and retraining for supervisors.  According to Michael J. Lotito, Esq., coordinator of the Jackson Lewis Management Education Practice Group, "The proposed regulations provide much needed clarification on ambiguities in the AB 1825 statute; for example, the regulations as currently drafted clarify that AB 1825 applies to out-of-state employers with California employees, and that the 50-employee threshold takes into account employees outside of the state."

Covered employers must be in compliance with AB 1825 as of December 31, 2005, and must repeat the supervisory training every two years.   The proposed regulations will discuss the types of training that satisfy the law, as well as the methods employers can use to track compliance with the retraining requirement.  Electronic-based learning is specifically permitted in the proposal.  The proposed regulations also give a detailed description of what qualifications trainers should have and what the training curriculum should include. 

Proposed Regulations Are Not Retroactive

The FEHC recognizes that AB 1825 requires California employers with 50 or more employees to provide the mandated sexual harassment training to all of their supervisory employees (who were employed as of July 1, 2005) by January 1, 2006, well before the proposed regulations will take effect.  The regulations acknowledge that employers complying with AB 1825's mandate have not and will not have the benefit of the FEHC's regulations.  Thus, an employer will not be required to re-train its supervisors if the employer has made "a substantial, good faith effort to comply with [AB 1825]."

Types of Training

The proposed regulations contemplate three types of training:  classroom, e-learning or webinars.  Classroom training is defined as "in-person, instructor-led instruction, created by a qualified instructional designer and provided to a supervisor by a qualified trainer, in a setting removed from the supervisor's usual work environment."  E-learning is defined as "individualized, computer-based training created by a qualified instructional designer," and webinar is defined as "a web-based seminar created by a qualified instructional designer and taught by a qualified trainer." 

The proposed regulations explicitly state that AB 1825 training can be accomplished using a variety of non-classroom instructional methods.  The law's phrase "other effective interactive training and education" is defined as "non-classroom instruction using audio, video, or computer technology, with an opportunity to ask questions and have them answered….  E-training and webinars shall incorporate feedback or a participation component at least once every 15 minutes, so that employees are measurably engaged in the training." 

Qualifications of Trainers

According to the proposed regulations, "trainers and educators" "may include California licensed attorneys, human resource professionals, psychologists or others provided they have legal education or practical experience in harassment training and knowledge of California laws prohibiting unlawful harassment."  The definition of "trainers and educators" also includes "instructional designers" who are individuals "creating the content for a classroom training, e-training or webinar." 

The proposed regulations attempt to build flexibility into the requirements for trainers, as well as give examples of the qualifications and qualities that make good trainers or educators.  For example, the proposed regulations describe the "[d]esirable qualities for an effective trainer or educator [as including] a person who: can use various training methodologies; can facilitate small and large group discussions; is an effective listener; has a credible, positive professional reputation, and continues to learn about gender and cultural issues and concerns."  On the other hand, "[u]ndesirable qualities for an effective trainer or educator include a person who is or has a reputation of being in the workplace or the instructional environment: a 'hugger,' sexual, flirtatious, aggressive, arrogant, abusive, demeaning to women or men, telling offensive jokes or using sexual, racial, religious, sexual orientation or other protected bases stereotypes or derogatory language."

The proposed regulations require that the trainer or educator "be qualified to train about the following:  (A) what is unlawful harassment; (B) how to intervene when harassing behavior occurs in the workplace; (C) how to report harassment complaints; (D) how to respond to a harassment complaint; (E) how to investigate harassment complaints and an employer's obligation to do so; (F) the illegality of retaliation for filing a harassment complaint and how to prevent retaliation from occurring when an employee has filed a harassment complaint; and (G) the employer's anti-harassment policy."  The proposed regulations encourage trainers and educators to use hypotheticals or examples to illustrate the principles being taught.  Trainers and educators should also encourage active participation in the training by asking questions of the supervisors, by facilitating problem-solving discussions, or by giving tests to ensure that the information is understood.

Content and Length of Training

The proposed regulations also describe the required content of AB 1825 training:  (1) the definition of unlawful harassment under FEHA and under Title VII (employers also may include in their training definitions of other types of prohibited harassment); (2)  FEHA and Title VII statutory provisions and case law regarding the prohibition against, and the prevention of, unlawful harassment; (3) the types of conduct that constitute unlawful harassment; (4) the remedies and resources available to employees who are the victims of harassment (for example, to whom they should report any alleged harassment); (5) strategies to prevent unlawful harassment in the workplace; (6) "'practical examples,' including but not limited to role plays, case studies, group discussions, and examples with which the employees will be able to identify" and which they can apply to their work setting; (7) the confidentiality of the complaint  process; (8) how effectively to investigate a harassment complaint; (9) "[W]hat to do if the supervisor is personally accused of harassment; [and (10)] the contents of the employer's anti-harassment policy and how to utilize it if a harassment complaint is filed."

The two hours of required training must consist of either two hours of classroom or webinar training "or the amount of time that the same content may be covered in an e-learning program for an average learner."  The FEHC tried to balance flexibility for employers with its concern that the information be given in long enough segments that the training is effective by not requiring the training to be completed in two consecutive hours.  But, "[f]or classroom training and webinars, the minimum duration of a training segment shall be no less than half an hour.  For e-training, the minimum training segment shall be fifteen minutes." 

Definitions of  "Employer" and "Employee"

The regulations will be codified at California Code of Regulations Section 7288.0 under the heading "Harassment Training and Education."  The proposed definitions of "employer" and "employee" provide that the 50-employee threshold for coverage includes employees not located in California.  The FEHC appears persuaded that AB 1825 should be liberally construed to include California employers with less than 50 California employees if such employers have more than 50 employees when out-of-state personnel are counted.  While the FEHC recognizes that the California Legislature has no authority over a non-California employer, the Legislature may regulate a California employer with employees both in California and out-of-state.  "Having 50 or more employees" would be defined as "employing fifty or more employees for each working day in any twenty consecutive weeks in the current calendar year or preceding calendar year."

Definition of "Supervisor"

The proposed regulations would adopt the Fair Employment and Housing Act's definition of "supervisor[1]" as defining "supervisory employees" under AB 1825, with the caveat that all personnel, whether or not they are physically located in California, who supervise California employees are included.  "New" supervisory employees are those promoted or hired to a supervisory position after July 1, 2005, and they must be trained within six months of their hire or promotion.  The proposed regulations state non-supervisory employees who attend AB 1825 training will not be deemed "supervisory employees" solely by virtue of such attendance, and it is hoped this will encourage employers to offer the two-hour harassment training to non-supervisory employees, as well.  Stating this position on training for non-supervisory personnel is important since in California employers are strictly liable for unlawful harassment engaged in by their "supervisors" even when no tangible employment loss takes place.

Methods of Tracking Compliance

After January 1, 2006, employers must provide two-hours of sexual harassment training to their supervisory employees once every two years.  The proposed regulations state than an employer may track its compliance with this requirement by using one of two methods (or a combination of these two methods):  (1) "Individual" tracking, which measures the two-year time period from the date each individual supervisory employee completed the last training; or (2) "Training year" tracking, which permits an employer to "designate a 'training year' in which it trains its supervisors and thereafter must again retrain its supervisors by the end of the next 'training year,' two years later.  Thus, with this method, an employer who has trained its supervisors by December 31, 2005, must again train its supervisors by December 31, 2007."  The proposed regulations give new businesses created after January 1, 2006 six months to comply with AB 1825's sexual harassment training mandate.

Conclusion

Once the FEHC publishes notice of the proposed regulations in the California Regulatory Notice Register, there will be a public comment period (a minimum of 45 days), after which the regulations may be revised before they are adopted.  In addition, the draft regulations may be revised between now and their actual publication date.  For more information about AB 1825 training and the proposed regulations, please contact the Jackson Lewis attorney with whom you regularly work, or Management Education Practice coordinator and partner Michael J. Lotito at (415) 394-9400 or lotitom@jacksonlewis.com.