Latest Draft of AB 1825 Sexual Harassment Training Regulations
April 2007

On April 23, 2007, the Fair Employment and Housing Commission (FEHC) adopted revised regulations for the California sexual harassment training law, AB1825 (California Government Code § 12950.1). This latest round of revisions address comments from the Office of Administrative Law (OAL), whose role in the process is to examine regulations for clarity and consistency with the underlying statute. The regulations will be codified at California Code of Regulations (CCR) §7288.0, under a new heading "Sexual Harassment Training and Education."

These AB 1825 sexual harassment training regulations reflect changes from numerous public comment periods that followed draft regulations published on December 16, 2005, June 20, 2006, August 29, 2006, October 2, 2006, November 14, 2006 and February 27, 2007 as well as the comments from the OAL.

According to the FEHC, the regulations will likely be effective in late Summer 2007.

For more information on the regulatory drafting process and access to the text of the sexual harassment training regulations, visit: http://www.fehc.ca.gov/pub/harassment_training.asp. For a copy of the OAL's comments on the previous version of the regulations, visit: http://www.oal.ca.gov/decision.htm

AB1825 requires employers who do business in California, and who have more than 50 employees, to provide all supervisors with training on how to prevent sexual harassment in the workplace. The first training deadline was December 31, 2005. Sexual harassment training must also be repeated every two years, making 2007 a "retrain" year for most organizations. With respect to the ongoing training obligation, newly hired or promoted supervisors must be trained within six months of the assumption of a supervisory position.

ELT and Littler Mendelson Advise FEHC on AB 1825 Sexual Harassment Training Regulations

In July 2005, the FEHC appointed a Blue Ribbon Advisory Committee to help create regulations for AB1825.

The purpose of the FEHC regulations is to provide clarity to employers on the specific requirements of the California sexual harassment training law, as well as practical guidelines for compliance. To draft the regulations, the FEHC recruited members for the Advisory Committee who could provide informed guidance and expertise on the prevention of both discrimination and sexual harassment in the workplace, as well as employment law training and technology.

Garry Mathiason, Chair of the Corporate Compliance Practice Group at Littler Mendelson and Chairman of the Board at ELT, was selected as a member of the Advisory Committee based on his long and distinguished career as a leading authority on employment law. Michael Korcuska, ELT's Chief Operating Officer and a 17-year veteran in training and adult learning theory, was selected to provide expertise on e-learning.

Understanding the Proposed AB 1825 Regulations

Are the Regulations Retroactive? What Do They Mean For Sexual Harassment Training That Has Already Been Conducted?

• The regulations are not retroactive. The FEHC acknowledges that many employers have already undertaken AB 1825 sexual harassment training without the benefit of finalized regulations.
• The regulations specify that employers who have made a substantial, good faith effort to comply with AB 1825 by completing supervisory training prior to the effective date of the regulations will be deemed to be in compliance.

What is the effective date of the Regulations?

• According to the FEHC, the regulations are expected to become effective in late Summer 2007. All sexual harassment training conducted after this date must comply with the new requirements.

What Are the Most Significant Changes in the New Regulations?

Below we have summarized the components of the final sexual harassment training regulations.

Interactivity Requirements for e-Learning Are Further Detailed

• Learners must have the opportunity to ask questions during the sexual harassment training - "An e-learning program shall provide a link to or directions on how to contact a trainer." The qualifications for a trainer have also been clarified (see below).
• Learner questions must be responded to "within a reasonable period of time" and within "no more than two business days" after a question is asked.
• The person who answers the question must also be able to "provide guidance and assistance about the training." ELT strongly recommends that employers use their own HR or legal resources (whether internal or outsourced) to respond to questions. An outside harassment training vendor may not have the appropriate knowledge to answer all questions, especially those relating to an employer's particular policies. More importantly, what may seem like a simple question could contain a harassment complaint requiring an investigation. Failing to respond to such complaints can create significant liability for the employer.

Interactivity Requirements for Webinars Are Further Detailed

• Webinars are an "internet-based seminar whose content is created and taught by a trainer and transmitted over the internet or intranet in real time."
• An employer using a webinar must be able to "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." This means that employers who choose to train with webinars need to be able to prove that a learner cannot simply login to a webinar, and then "tune out." To grant credit for a webinar, for example, the employer would need to be able to produce an actual record that a certain individual answered questions and completed interactive exercises.

Interactivity Requirements for All Forms of Sexual Harassment Training

• All forms of training must use "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."
• With respect to e-learning, it is critical that employers avoid developing or purchasing sexual harassment training programs that involve a one-way "information dump" and/or excessive amounts of passive reading. Every component of the program should be highly interactive and require the learner to constantly apply knowledge. ELT recommends some kind of interactive exercise every 5-7 minutes.

The Expertise Threshold is Intensified. Sexual Harassment Training Providers Must Be Able to Demonstrate a Real Nexus to True Expertise.

• All forms of sexual harassment training must involve a "trainer" in the development process and for answering supervisor's questions. "Trainers" are:
  1. Attorneys admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or
  2. Human resource professionals with two or more years practical experience in one or more of the following: a) designing or conducting discrimination, retaliation and sexual harassment prevention training; b) responding to sexual harassment complaints or other discrimination complaints; c) conducting investigations of sexual harassment complaints; or d) advising employers or employees regarding discrimination, retaliation and sexual harassment prevention, or
  3. Professors and 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 of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.
• For e-learning, an "Instructional Designer" is a person with expertise in current instructional best practices who develops a sexual harassment training program in conjunction with a qualified trainer.
  • Practically speaking, this means that employers who develop their own sexual harassment programs, or procure them from outside vendors, must be able to clearly demonstrate the active, hands-on participation of a true harassment-prevention expert. This relates not only to a program's development, but also its ongoing maintenance.
  • When using external vendors, employers should ask tough questions about credentials and avoid generic sexual harassment training providers who do not specialize in harassment prevention.
• For live classroom training or webinars, training must be delivered by, or in conjunction with, a qualified "trainer." A trainer must be qualified to train about:
  • What constitutes 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 conduct a workplace investigation of a harassment complaint
  • What constitutes retaliation and how to prevent it
  • Essential components of an effective anti-harassment policy
  • The effect of harassment on harassed employees, co-workers, harassers and employers.

In classroom and webinar formats, an individual who does not meet the qualifications of a trainer can "team teach" with a trainer providing "the trainer supervises these individuals and the trainer is available throughout the training to answer questions from training attendees."

How to Measure Two Hours of e-Learning

• "Two hours" of harassment training is "two hours of classroom or two hours of webinar training, or, in the case of an e-learning program, a program that takes the supervisor no less than two hours to complete."
• The draft December 2005 regulations suggested that the length of e-learning programs could be measured based on an average anticipated run time. The final regulations indicate that employers must provide sexual harassment training programs that take at least two hours to complete.
• Employers must ensure that their e-learning programs have confirmed run times of at least two hours. This can be achieved through several methods, the two most desirable being:
  • An enhanced audio version of the course that takes at least two hours to complete based on the definitive length of mandatory audio files
    OR
  • An audio or non-audio course with a built in "timer" that requires learners who complete in less than two hours to continue viewing training content
• Regardless of the method, the sexual harassment training does not need to be completed in two consecutive hours. The regulations also specifically permit "bookmarking" for e-learning programs. (Bookmarking allows learners to log out of the program at any time, and then return to the program where they left off.)

Sexual Harassment Training is No Longer Required for Supervisors Located Outside of California

• In the December 2005 and June 2006 regulations, AB 1825 applied to supervisors not physically located in California, as long as they directly supervised employees in California. Now sexual harassment training is limited to supervisors resident in California.
• The change was driven by AB 2095. One of the provisions of this bill, sponsored by the California Employment Law Council and The Chamber of Commerce, limits the application of AB 1825 to supervisors who are resident in California.

Sexual Harassment Training Records Must Be Documented

• Employers must track compliance by keeping records of its sexual harassment training. The records must include:
  • Supervisory employee's name
  • Training date
  • Type of training
  • Name of the training provider
• Records must be maintained for a minimum of two years

Sexual Harassment Retraining Can Be Calendared Using Individual Tracking or Training Year Tracking

This is the area that changed the most in the four sets of draft regulations. Under the final regulations, the employer can use one or both of the methods described below.

• Individual Tracking - An employer may track sexual harassment training for each supervisor measured 2 years from the date of the completion of the last training for that individual - the "Individual" Tracking Method.
  • For example, Doug completes his first sexual harassment training program on January 26, 2005. Doug must be retrained no later than January 26, 2007.
  • Practically speaking, this will require a retraining schedule of somewhat less than 2 years to ensure that sexual harassment training is completed within the 2-year timeframe.
• Training Year Tracking — An employer can designate a "training year" to train some or all of its supervisors, and thereafter, must again retrain these supervisors by the end of the next "training year," 2 years later.
  • For example, Company X designates 2005, 2007, 2009 etc. as "training years."
  • Doug completes his first sexual harassment training program on January 26, 2005. Doug must be retrained no later than December 31, 2007.
  Impact on Existing Employees
  Practically speaking, as illustrated above, the Training Year Method can lengthen the sexual harassment training cycle for existing supervisors beyond 2 years.
  
  Impact on New Hires and Promotions
  For newly hired and promoted supervisors, using the Training Year Method may initially shorten the sexual harassment training cycle:
  • For example, Company X designates 2005, 2007, 2009 etc. as "Training Years."
  • Doug is hired on March 1, 2006. Doug's first round of sexual harassment training must be completed within 6 months of hire - September 1, 2006.
  • Under the Training Year Method, Doug's first round of re-training must be completed by December 31, 2007 - less than 2 years from his first sexual harassment training date. The second round of re-training would need to be completed by December 31, 2009, back on the 2-year schedule.
  • Alternatively, the Individual Tracking Method can be used for Doug, and his first re-training deadline is September 1, 2008. The second re-training deadline is September 1, 2010.
  • In this example, Company X cannot designate an "alternate set" of sexual harassment training years (2006, 2008, 2010 etc.) for new hires and promotions like Doug. According to the October 2006 regulations, "[a]n employer shall not extend the training year for the new supervisors beyond the initial two year training year."
• As illustrated above, employers can use a combination of the Individual Tracking and Training Year Tracking Methods. So, if an employer uses the Training Year Method for the bulk of its employees, but then does a round of new hires, the new hires can be on the Individual Tracking method for retraining.
• Some employers will still choose the Training Year Method as the only choice for tracking, and require some new hires to get trained two years in a row. Why? Because it is easier to administrate in the long term, and the "back-to-back training" incidence would only occur after the first year of hire. Then the employee would cycle into the every other year "Training Year" method.

What Else Should I Know About the Regulations?

The final sexual harassment training regulations answer some of the most commonly asked questions about AB 1825.

Electronic Learning (e-learning) is Explicitly Permitted

• The regulations explicitly state that e-learning and webinars are permissible. AB 1825 allows for "other effective interactive training," which includes "the use of audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training."
• E-learning is specifically defined as "individualized, interactive, computer-based instruction created by a trainer and an instructional designer."

Training Content Can Go Beyond Sexual Harassment to Cover Other Important Forms of Workplace Harassment within the Two Hours of Training

• The text of AB 1825 is not limited to sexual harassment and requires that training include "practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation."
• The final regulations state that sexual harassment training can include "other forms of harassment covered by the Fair Employment Housing Act (FEHA), as specified at Government Code section 12940, subdivision (j), and discuss how harassment of an employee can cover more than one basis."
• While training should focus on sexual harassment prevention, time spent discussing other forms of workplace harassment does count toward the two hour requirement.

General Sexual Harassment Training Content is Outlined

• The objectives of AB 1825 training are summarized as follows:
  • To assist California employers in changing or modifying workplace behaviors that contribute to harassment.
  • To develop, foster and encourage a set of values in supervisory employees that will assist them in preventing and effectively responding to incidents of harassment.
• Training content should include:
  • A definition of unlawful sexual harassment under the FEHA and Title VII of the Civil Rights Act of 1964.
  • 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. (This means actual statutory citations and case law citations are not required - only their underlying principles.) The most recent draft explicitly adds "discrimination and retaliation" to the requirements of the training.
  • The types of conduct that constitute sexual harassment.
  • Remedies available for sexual harassment.
  • Strategies to prevent sexual harassment in the workplace.
  • Practical examples of sexual harassment including but not limited to role plays, case studies, group discussions, and examples which the employees will be able to identify with and apply in their employment setting.
  • The limited confidentiality of the complaint process.
  • Resources for victims of unlawful sexual harassment, such as to whom they should report any alleged harassment.
  • The employer's obligation to conduct an effective workplace investigation of a harassment complaint.
  • 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 is filed.
    • Either the employer's policy or a sample policy should be provided to supervisors. Regardless of whether the employer's policy is used as part of the sexual harassment training, the employer must give each supervisor a copy of its anti-harassment policy and require that each supervisor read and acknowledge receipt of the policy.

The Threshold of 50 Employees is Clarified

• Fifty or more employees means "employing fifty or more employees for each working day in any twenty consecutive weeks in the current calendar year or preceding calendar year."
• This is an important clarification for employers with seasonal workers, where the size of the workforce changes throughout the year.

All 50 Employees Do Not Need to Reside in California

• The 50 employee threshold for AB 1825 coverage includes employees not physically located in California.
  • Practically speaking, this means that an employer with 50 employees spread across multiple states must train any California supervisors — even if there is only one.

"Supervisor" is Defined

• The FEHA definition of "supervisor" is adopted by the final sexual harassment training regulations. A supervisor is any individual, located in California, 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 the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.¹
• Attending AB 1825 sexual harassment training does not create an inference that an employee is a supervisor, or that a contractor is an employee or a supervisor.

New Businesses or Newly Covered Businesses

• New businesses must provide sexual harassment training within six months of their incorporation or formation, and thereafter, every two years.
• Businesses that expand to 50 employees and/or contractors must provide sexual harassment training within six months of hitting the 50-person threshold, and thereafter, every two years.

Carry Over Sexual Harassment Training From Previous Employers

• A new supervisor who received AB 1825 compliant sexual harassment training (from a different employer) within the two years prior to the assumption of the supervisory position need not be trained within six months. The individual can instead be provided sexual harassment training on the two-year tracking schedule from the date of the last training. The individual, must however, be provided a copy of the employer's harassment policy, and be required to read and acknowledge it within the six month time frame.
• Employers who take advantage of this provision are relying on the compliance of the prior employer's sexual harassment training program. According to the regulations, "[t]he burden of establishing that the prior training was legally compliant … shall be on the current employer." It may be wise, therefore, to train newly hired supervisors again even if they have recently been trained by a previous employer.

Remedies

• If the Department of Fair Employment and Housing (DFEH) establishes that an employer failed to provide effective sexual harassment training, the Commission shall issue an order that the employer comply within 60 days of the effective date of the Commission's order.

What Should Employers Do?
ELT's Top 5 Sexual Harassment Training Recommendations

1. If you are using e-learning, ensure that the sexual harassment training program is sufficiently interactive and includes:
   1. Engaging questions, skill-building activities and numerous hypothetical scenarios about harassment, each with one or more discussion questions.
   2. The ability to ask questions. You should then set up a process whereby questions can be consolidated, reviewed and responded to within two business days by a qualified trainer.
2. Ensure that your classroom / webinar trainer, or the developer of your e-learning program can meet the stringent experience requirements detailed above. Ask yourself whether you would be comfortable with your trainer or e-learning vendor being cross-examined about relevant credentials and expertise.
3. If you have more than 50 employees, assume AB1825 applies to you even if you do not have 50+ employees residing in California. In training more expansively, consider the fact that the California sexual harassment training regulations will likely set the standard for national training programs. Several employers are rolling out their California sexual harassment training programs nationally, and several states are considering legislation similar to AB 1825.
4. Carefully audit who is exerting supervisory influence over California employees. The FEHA definition of "supervisor" is very broad and includes employees that some employers would not typically define as supervisors. Cast a wide net in defining your sexual harassment training audience. You may consider making modifications to your Human Resources Information System (HRIS) to explicitly track this information.
5. Train beyond sexual harassment to cover other forms of unlawful workplace harassment. Under the EEOC Guidelines and federal case law, this broad coverage is required and represents a cost effective use of training time and resources. (To learn more, visit http://www.point-of-law.com/report.asp?id=465.)

Committed to Excellence

ELT is proud to be an integral part of AB1825 developments, helping to shape regulations that will directly impact employers' sexual harassment training and compliance programs. We are deeply committed to our roles as leaders in the employment law community, as well as providers of unique, high quality training solutions.

The Full Blue Ribbon Advisory Committee

Stephen Anderson Simao Avila Jo Anne Frankfurt Ely Gardner Julie Hall Caroline Hunt

Lester Jones Michael Korcuska Garry Mathiason Bruce Monfross Linda Ng Ann Noel

Paul Ramsey Victor Salazar Paul Schechter Pat Shiu George Woolverton

The Honorable Sarah Reyes, the author of AB1825, also provided valuable input reflected in the final sexual harassment training regulations.

Special recognition is extended to Ann Noel, Acting Executive and Legal Affairs Secretary of the FEHC, for her professional leadership of the Advisory Committee and focus on exploring practical solutions to AB 1825's implementation challenges.

¹Gov't Code §12926(r)

First Draft AB 1825 Regulations - December 2005

Second Draft AB 1825 Regulations - June 20, 2006

Third Draft AB 1825 Regulations - August 29, 2006

Fourth Draft AB 1825 Regulations - November 14, 2006

Fifth Draft AB 1825 Regulations - February 27, 2007