New Draft AB 1825 Regulations — August 2006

On August 29, 2006, the Fair Employment and Housing Commission (FEHC) issued new proposed regulations for California's mandatory harassment training law, AB 1825 (California Government Code § 12950.1).

These regulations, still in draft form, reflect changes from the public comment periods that followed the draft regulations published on December 16, 2005 and again on June 30, 2006.

There will be a minimum 15-day public comment period, during which written responses and suggestions will be received by the FEHC. For more information on the public comment process, visit: http://www.fehc.ca.gov/pub/harassment_training.asp.

A final publication date is unknown, but expected in late 2006. The regulations will be codified at California Code of Regulations (CCR) §7288.0, under a new heading "Harassment Training and Education."

AB 1825 requires employers who do business in California, and who have more than 50 employees, to provide harassment prevention training to all supervisors. The first training deadline was December 31, 2005. 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 Regulations

In July 2005, the FEHC appointed a Blue Ribbon Advisory Committee to help create regulations for AB 1825.

The purpose of the FEHC regulations is to provide clarity to employers on the specific requirements of the 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 harassment and discrimination prevention, as well as employment law training and technology.

As recognized leaders in both fields, individuals from Littler and ELT were appointed to the Advisory Committee to help draft the regulations

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 Vice President of Operations 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 Training That Has Already Been Conducted?

• The regulations are not retroactive. The FEHC acknowledges that many employers have already undertaken AB 1825 training without the benefit of finalized regulations.
• The draft 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.
• As employers plan their upcoming retraining, the draft regulations are the best guideline currently available to determine the type of training to procure, or how to develop training internally. They have already undergone two public comment periods, followed by substantial changes.

The Regulations Will Circulate Again for Public Comment

• Once the FEHC publishes notice of the proposed regulations in the California Regulatory Notice Register, there will be a minimum 15-day public comment period. The regulations may change before final publication although further refinements are expected to be minimal.
• The regulations will be codified at California Code of Regulations (CCR) §7288.0, under a new heading "Harassment Training and Education."
• Although a final publication date is unknown, California regulations specify that the FEHC complete their work by December 16, 2006 or the regulation process will need to start over again. Because this outcome would be extremely undesirable employers should assume that new regulations will be adopted before the end of 2006.

What Are the Most Significant Changes in the New Regulations?

Below we have summarized the most significant changes that now appear in the August 2006 regulations. (A first draft of the regulations was published on December 16, 2005 a second set on June 30, 2006):

Interactivity Requirements for e-Learning Are Further Detailed

• Learners must have the opportunity to ask questions during the training - "An e-learning program shall provide a link to or directions on how to contact directly trainers or educators, either working for the employer or retained by the e-learning provider."
• 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 of harassment training issues." For this reason, ELT strongly recommends that employers use their own HR or legal resources (whether internal or outsourced) to respond to questions. An outside training vendor may not have the appropriate knowledge to answer 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 created and taught by a qualified trainer and transmitted over the intranet or internet in real time."
• Webinars 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.
• Webinars require the same 'ask a question' feature detailed above for e-learning.

Interactivity Requirements for All Forms of Training

• All forms of training should include:
  • "Questions that assess learning"
  • "Skill-building activities that assess the supervisor's application and understanding of content learning"
  • "Numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain measurably engaged in the training."
• With respect to e-learning, it is critical that employers avoid developing or purchasing 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. Training Providers Must Be Able to Demonstrate a Real Nexus to True Expertise.

• All forms of training must involve a "Subject Matter Expert" who has "legal education coupled with practical experience, or substantial practical experience in harassment, discrimination, and retaliation."
• For e-learning, an "Instructional Designer" is a person with expertise in current instructional best practices who develops a training program based on material provided by a Subject Matter Expert (above).
  • Practically speaking, this means that employers who develop their own 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 training providers who do not specialize in harassment prevention.
• For live classroom training or webinars, a "qualified trainer" is someone who either through formal education and training, or substantial experience, can effectively lead training sessions. If the trainer also meets the expertise threshold of a Subject Matter Expert (see first bullet above), then s/he may answer questions asked by training participants. If s/he does not meet the expertise threshold of a Subject Matter Expert, then a Subject Matter Expert must be available to answer the questions either during the training session or within two business days.
  • In terms of the practical implication, this makes classroom or webinar training without an actual Subject Matter Expert ("SME") challenging. The SME has to be present during the live training, or all questions need to be documented and archived for the SME to answer after the training session.
• Trainers or educators must use "hypotheticals or examples that illustrate the course content and involve the supervisor through questions, problem solving and quizzes to ensure that the information is understood."
• Subject Matter Experts must be qualified to train about the following:
  • What constitutes unlawful harassment
  • 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.

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 December 2005 regulations suggested that the length of e-learning programs could be measured based on an average anticipated run time. The new regulations suggest that employers must provide training programs that take at least two hours to complete.
• Once the regulations are effective, 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 audio version of the course that takes at least two hours to complete based on the definitive length of mandatory audio files
    OR
  • A 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, 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.)

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 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. The bill passed both houses and their committees with almost no opposition, and went to the Governor on August 28, 2006 (one day before the most recent AB 1825 regs were released.) The Governor has 30 days to sign or veto AB 2095.

Training Records Must Be Documented

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

Retraining Can Be Calendared Using Individual Tracking or Training Year Tracking

• This is the area that has changed the most in the three sets of draft regulations. The employer can use one or both of the methods described below.
• Individual Tracking - An employer may track training for each supervisor measured two years from the date of the completion of the last training for that individual - the "Individual" Tracking Method.
  • For example, Doug completes his first 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 training is completed within the 2-year timeframe.
• Training Year Tracking — An employer can designate a "training year" to train supervisors, 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 who received training the prior year.  However, unlike the language in the December 2005 regulations, which first described training year tracking, no supervisor can be retrained any later than six months from the anniversary of his or her training.
  • December 2005 Regulations Training Year Method —Doug received training on January 15, 2005. Doug must be retrained no later than December 31, 2007.
  • June 2006 Regulations — No Training Year Method Allowed - Doug received training on January 15, 2005. Doug must be retrained no later than January 15, 2007.
  • NEW August 2006 Training Year Method — Doug received training on January 15, 2005.  Doug must be retrained no later than July 15, 2007.
  Practically speaking, the new Training Year Method can lengthen the training cycle for existing supervisors by up to six months.
  
  For newly hired and promoted supervisors, using the training year method may shorten the training cycle. Under the August 2006 regulations, if an employer designates 2005 and 2007 as "training years," new hires trained in 2006, under the training year method, would have to be trained in 2007.

• 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. Here's an example:
• Company X uses the Training Year Method for all employees, designating 2005. 2007, 2009 etc. as training years
  • Doug is a new hire on June 1, 2006. Doug's initial training must be completed before December 1, 2006.
  • For his first round of retraining, Doug must be trained no later than December 31, 2007 (less than two years from his initial training).
  • For his second round of retraining, Doug must be trained no later than December 31, 2009.

What Else Should I Know About the Regulations?

The draft 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 whose content is written, developed and approved by an instructional designer(s), qualified trainer(s) or subject matter expert(s)."

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 draft regulations state that 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 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 as informed by 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. (This means actual statutory citations and case law citations are not required - only their underlying principles.)
  • The types of conduct that constitute harassment.
  • Remedies available for harassment.
  • Strategies to prevent harassment in the workplace.
  • Practical examples of workplace 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 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 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 draft 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 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 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 training within six months of hitting the 50-person threshold, and thereafter, every two years.

Carry Over Training From Previous Employers

• A new supervisor who received AB 1825 compliant 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 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 must recognize that they are relying on the compliance of the prior employer's training program. 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 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 Recommendations

While the AB 1825 regulations are still in draft form and subject to potential change, the best course of action for employers is to train as broadly and extensively as possible given the current guidance available from the FEHC.

As employers plan their upcoming retraining, the draft regulations are the best guideline currently available for the type of training to procure, or for how training should be developed internally.

1. If you are using e-learning, ensure that the 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.
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 AB 1825 applies to you even if you do not have 50+ employees residing in California. In training more expansively, consider the fact that the California regulations will likely set the standard for national training programs. Several employers are rolling out their California 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 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 AB 1825's developments, helping to shape regulations that will directly impact employers' 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 AB 1825, also provided valuable input reflected in the draft 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