Mandatory Harassment Prevention Training By: CalChamber Employment Law Counsel What You Should Know About AB 1825 Training Mandates Complying with California employment law can be complicated. Even the most seasoned employment law expert may have to ask for clarification to understand what the law actually requires. For that reason, CalChamber created this AB 1825 white paper to provide information about which employers are covered, who must be trained, how often the training must be done and record-keeping requirements. Additionally, you ll find a checklist that will help you determine the most effective training for your company. What Is AB 1825 And Which Employers Must Comply? Since 2005, California companies with 50 or more employees must provide two hours of interactive sexual harassment prevention training to supervisors within six months of hire or promotion, and every two years thereafter. The 50 employee or more threshold includes full-time, part-time and temporary workers who are working anywhere in the world. You must include all employees and contractors, including those that reside or work outside of California. Under the regulations for AB 1825, having 50 or more employees means employing or engaging 50 or more employees or contractors for each working day in any 20 consecutive weeks in the current calendar year or preceding calendar year. If your business expands to 50 employees and/or contractors and becomes subject to this California law, you must provide training to supervisors within six months of their eligibility and every two years thereafter. Similarly, if you are a newly created business with 50 or more employees and/or contractors, you must provide training to supervisors within six months of your establishment and then every two years thereafter. Beginning January 1, 2015, employers are also required to include a component on the prevention of abusive conduct in their mandatory harassment prevention training. Abusive conduct is specifically defined by the law. You will want to make certain that any training your company provides after January 1, 2015, contains a component on the prevention of abusive conduct as defined by the law. Which Employees Must Be Trained? The law mandates training for supervisors. For purposes of AB 1825, a supervisor is defined under Government Code Section 12926 as an individual who has authority to exercise independent judgment to: Hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees; Direct the work of other employees or adjust their grievances; or Effectively recommend any of these actions. Page 1
How Are employers Required To Track Training Compliance And Course Completion? Employers are permitted to use one or a combination of the following tracking methods to track compliance: Individual Tracking: An employer may track its training requirement for each supervisory employee on an individual calendar by measuring the every two years requirement from the date of completion of the last training of the individual supervisor.»» Individual Tracking example: An employer hires a new supervisor on April 15, 2011, who received harassment prevention training on September 22, 2011 meeting the training requirement of within six months of hire or promotion. That supervisor must be re-trained by September 21, 2013, to satisfy the every two years requirement. Training Year Tracking: An employer may designate a training year in which it trains its supervisory employees. Employers following the training year method must retrain all supervisors every two years, by the end of the designated training year. This requirement applies to newly hired or promoted supervisors who received training in the prior year.»» Training Year Tracking example: An employer trained all of its supervisors in 2011 and sets 2013 as the next training year. An employee was promoted to supervisor on February 5, 2012, and received the initial training on June 10, 2012 meeting the training requirement of within six months of promotion or hire. That supervisor must be re-trained by December 31, 2013, to align with the company s training year schedule. Newly hired supervisors who have received anti-harassment training from their previous employer prior to their new employment may fall under duplicate training : The AB 1825 regulations allow employers to accept the employee s previous employer s training as valid and schedule the individual training based on the prior training date. However, it will be the responsibility of the new employer to prove that the prior training was sufficient and meets the legal requirements of AB 1825. Additionally, within six months of being hired or promoted, the supervisor must read and acknowledge receipt of the new employer s anti-harassment policy. Note: Employers may use either the Individual Tracking, Training Year Tracking or a combination of both. What Documentation And Record Retention Are Required Of Employers? The regulations also state that AB 1825 compliant training completion documentation must include: The name of the person trained The date of training The type of training The name of the training provider Note: Employers must retain these records for a minimum of two years and be able to provide copies upon request. Page 2
How Do In-Person Training And E-Learning Training Compare? Since AB 1825 went into effect in 2005, the market for harassment prevention training has grown considerably, and employers have more choices than ever. Although there are a variety of options, harassment prevention training typically falls into two main categories: inperson and e-learning. AB 1825 regulations define e-learning as any computer based training. It is most commonly referred to as online training. The following chart offers a side-by-side comparison of the criteria that usually factors in during a decision making process. Flexibility In-person training Must be scheduled in advance; must be rescheduled for those who can t attend; risk having employees miss training deadlines (whether individual tracking or training-year tracking is used) Online training Employees can train at any time and at a moment s notice; administrators can easily monitor, remind and track course completion Cost Averages about $85-$100 per trainee Course costs an average of about $32-$40 per trainee Effectiveness Interactive Company Specific Varies depending on the course instructor, room environment, curriculum and level of engagement Allows for a personalized experience through interactivity and verbal discussions Trainers will tailor the course outline and materials for the company *Evaluation of Evidence Based Practices on Online Learning, U.S. Department of Education, 2009. A U.S. Dept. of Education study shows that on average, students in online learning conditions performed better than those receiving face-to-face instruction* High interactivity through quizzes and videos throughout the course to test the learning and retention of each learner Companies can usually upload their company policy in the course to offer a more customized appearance Note: Companies that choose in-person training can opt to use an online training course to supplement their training program. This training combination enables companies to provide convenient individual online training to new or promoted supervisors within the required timeframe but without the coordination efforts needed for an in-person class. AB 1825 Harassment Prevention Checklist When reviewing a harassment prevention training course, use this checklist to make sure that you have the all the needed information about the course, curriculum and trainers to help you determine the most effective training for your company. Page 3
1. Course Qualifications When reviewing an AB 1825 course you will want to make sure that the course and curriculum meet the following criteria. Does the course: Provide a minimum of legally required two hours of training (either in a classroom, a webinar or online through an e-learning program)? Provide legally required interactivity either through discussions or quizzes? Have a qualified expert available to answer questions, whether face-to-face or via email? Administrative convenience: Does the online course feature a bookmarking option that allows learners to stop and restart in the same spot? (not a regulation requirement) 2. Curriculum Content Qualifications As you review the course, make sure that it contains each of the following AB 1825 required components. Does the curriculum offer: A definition of unlawful sexual harassment under California s Fair Employment and Housing Act (FEHA) and Title VII of the federal Civil Rights Act of 1964, as well as additional definitions, training and discussions of other forms of harassment covered by FEHA? An explanation of FEHA and Title VII statutory provisions and case law principles concerning the prohibition against and the prevention of unlawful sexual harassment, discrimination and retaliation in employment? Examples of conduct that constitute sexual harassment, including practical examples that show true-tolife scenarios from case law, news and media accounts; hypothetical situations based on possible workplace interactions; and other sources that illustrate sexual harassment, discrimination and retaliation through the use of role play, case studies and group discussions? Remedies available for sexual harassment? Strategies to prevent sexual harassment in the workplace? An explanation of the limited confidentiality of the harassment complaint process? A listing of resources for victims of sexual harassment, and the steps they should take to report any alleged sexual harassment? An explanation of 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? A definition of anti-harassment policy and how to utilize it if a harassment complaint is filed? A discussion on the prevention of abusive conduct, as defined by the law? Inclusion of a sample policy whether generic or company specific? Page 4
3. Qualified Trainers Check your trainer s credentials to make sure that the in-person or webinar presenter is qualified. If you use an online course, confirm that the material was created and written by a qualified trainer. The trainer must be either: An attorney admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under FEHA and/or Title VII of the federal Civil Rights Act of 1964. A human resources professional or harassment prevention consultant with a minimum of two years of practical experience in sexual harassment prevention training; responding to sexual harassment complaints; conducting investigations of harassment complaints; and advising employers or employees regarding discrimination, retaliation and sexual harassment. A professor or instructor in a law school, college or university with a post-graduate degree or California teaching credential, and either 20 instruction hours or two or more years of experience teaching employment law under FEHA and/or Title VII of the federal Civil Rights Act of 1964. Additional qualifications should include in-depth knowledge of: What unlawful harassment, discrimination and retaliation are as defined by 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 conduct a workplace investigation of a harassment complaint. What constitutes retaliation and how to prevent it. Essential components of an anti-harassment policy. The effect of harassment on harassed employees, co-workers, harassers and employers. CalChamber Can Help! If you are not yet a member, start a 15-day trial of HRCalifornia for more information on California employment laws and HR compliance. Visit HRCalifornia.com/freetrial. To learn more about CalChamber resources, just call our Customer Service Representatives at (800) 331-8877, Monday through Thursday from 8 a.m. to 5 p.m. PT., and Friday from 8 a.m. to 4 p.m. PT. California Chamber of Commerce v01012015 Page 5