Draft AB 1825 Regulations Issued for Public Comment

The FEHC adopted new draft regulations on June 20, 2006. A detailed summary will be posted here in late June/early July when the draft regulations are officially published by the FEHC.

December 16, 2005, the FEHC published notice of the proposed regulations for California's mandatory harassment training law, AB 1825 (California Government Code § 12950.1). There will be a minimum 45-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/rulemaking.asp.

A final publication date is unknown, but expected in early to mid 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 round of training must be completed by December 31, 2005, and then repeated every two years. 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 Fair Employment and Housing Commission (FEHC) appointed a Blue Ribbon Advisory Committee to help in the creation of 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 Chair 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.

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.

The Regulations Will Soon Circulate for Public Comment

• Once the FEHC publishes notice of the proposed regulations in the California Regulatory Notice Register, there will be a minimum 45-day public comment period. The regulations may change before final publication and some further refinements are expected.
• A final publication date is unknown. The regulations will be codified at California Code of Regulations (CCR) §7288.0, under a new heading "Harassment Training and Education."
• ELT has closely followed the development of the draft regulations for several months. Public comment will not begin until after final review by the State Department of Finance and potential further revisions by the FEHC. This ELT update has been made available because public notice and the commencement of the comment period are imminent.

What Do the Proposed Regulations Say?

The draft regulations answer some of the most commonly asked questions about AB 1825.

The Threshold of 50 Employees is Clarified

• 50 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.

Not All 50 Employees 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.
• It is likely that this provision will be challenged if it remains in the regulations, and further review by the FEHC is expected. Nonetheless, the current draft states that AB 1825 coverage requires 50 employees regardless of their location.

"Supervisor" is Defined

• The Fair Employment Housing Act (FEHA) definition of "supervisor" is adopted by the draft regulations. A supervisor is 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 the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.¹

• Non-supervisory employees who receive AB 1825 training will not be deemed supervisors simply because they were trained.

Supervisors Do Not Need to Physically Reside in California

• All personnel who supervise California employees must be trained, even if they are not physically located in California.
• It is expected that the FEHC will further clarify how direct the supervision must be to invoke the California statute.

Training Content Can Go Beyond Sexual Harassment to Cover Other Important Forms of Workplace Harassment

• 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 FEHA , as specified at Government Code section 12940, subdivision (j), and discuss how harassment of an employee can cover more than one basis."

General Training Content is Outlined

• A definition of unlawful harassment as informed by the FEHA and Title VII of the Civil Rights Act of 1964.
• FEHA and Title VII statutory provisions concerning the prohibition against and the prevention of unlawful harassment.
• The types of conduct that constitutes 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 with which the employees will be able to identify and apply in their employment setting.
• The confidentiality of the complaint process.
• Resources for victims of unlawful harassment, such as to whom they should report any alleged harassment.
• Effective investigation of a harassment complaint.
• What to do if the supervisor is personally accused of harassment.
• The contents of the employer's anti-harassment policy and how to use it if a harassment complaint is filed.

Electronic Learning (e-learning) is Explicitly Permitted

• AB 1825 allows for "other effective interactive training" in addition to traditional classroom instruction. The regulations explicitly state that e-learning and webinars are permissible.
• E-learning is specifically defined as "individualized, computer-based training created by a qualified instructional designer."

Further Interactivity Requirements for e-Learning and Webinars Are Detailed

• Learners must have the opportunity to ask questions during the training. There is nothing in the regulations requiring an immediate / contemporaneous answer for all questions posed during a classroom session, e-learning program or webinar. (This would be practically impossible under any of the approved training methodologies.) Captured questions must, however, be answered.
• E-learning and webinars must incorporate learner feedback or a participation component at least once every 15 minutes to demonstrate that that employees are "measurably engaged" in the training.
• Interactive exercises should require learners to apply harassment prevention concepts to ensure the acquisition of knowledge.

Specific Guidance is Provided on How to Measure Two Hours of e-Learning

• "Two hours" of harassment training is 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." A strict mathematical approach is not required to measure the duration of an e-learning program.
• The FEHC recognizes that the best designed e-learning programs anticipate average run-times. Because different types of learners will take training at different paces, the draft regulations clarify that "e-learning programs are not required to have a built-in timer that causes rapid learners to view additional content until the two hour standard is met."
• Regardless of the method, training does not need to be completed in two consecutive hours.

Trainer and Program Developer Qualifications Are Clarified

• Trainers and educators, as well as developers of e-learning ("instructional designers") may include California licensed attorneys, human resource professionals, psychologists or other individuals, provided they have legal education or practical experience in harassment training and knowledge of California laws prohibiting unlawful harassment.
• A trainer, educator or developer of e-learning may use hypotheticals and examples to illustrate anti-harassment principles, and must be qualified to provide substantive training on the following subjects:
• What is unlawful harassment
• How to intervene when harassing behavior occurs in the workplace
• How to report harassment complaints
• How to investigate harassment complaints and the employer's obligation to do so
• The illegality of retaliation for filing a harassment complaint and how to prevent retaliation from occurring when an employee has filed a harassment complaint
• The employer's anti-harassment policy

Specific Guidance is Provided on How to Manage an Ongoing Training Calendar

• Employers can use either of two methods to meet AB 1825's periodic re-training requirement:
1. Individual Tracking
2. Training Year Tracking
• Individual Tracking measures the two-year time period from the date each individual supervisor completed his or her last training.
• For example , Chris completes his first training program on October 26, 2005. Chris must be retrained no later than October 26, 2007.
• Training Year Tracking allows employers to designate a "training year" in which to train supervisors. The employer must retrain supervisors by the end of the next training year. Practically speaking, this allows for more than two years to pass between some training sessions.
• For example , 2005 is designated as a "training year." Chris takes his first training program on January 5, 2005. Chris must be retrained no later than December 31, 2007.
• New supervisors must be trained within six months of assuming their supervisory position, and every two years, measured either by the individual or training year tracking method. If an employer uses the training year method, some supervisors may need to be retrained sooner than once every two years.
• For example , an employer has created a training year schedule designated as 2005, 2007, 2009, etc. Chris is hired and receives harassment training in 2006. Chris needs to be trained again in 2007 along with the other supervisory employees and thereafter, follow the employer's two year training schedule.

While the AB 1825 regulations are in draft form and subject to 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.

1. 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.
2. Carefully audit who is exerting supervisory influence over California employees-including those supervisors who do not reside in California. Cast a broad net in defining your training audience. (It is expected that the FEHC will further clarify how direct the supervision must be to invoke AB 1825.)
3. 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.)
4. If you are using e-learning, ensure that the program is sufficiently interactive and includes:
1. Engaging practical examples and hypotheticals.
2. A mandatory learner feedback or a participation component that occurs at least 15 minutes and requires learners to apply their knowledge. (From an instructional design standpoint, an effective program should require this kind of interaction far more frequently.)
3. The ability to ask questions. You should then set up an internal process whereby questions can be consolidated, reviewed and responded to within a reasonably prompt time frame.
5. Ensure that your classroom / webinar trainer, or the developer of your e-learning program can meet the knowledge and experience requirements detailed above. Ask yourself whether you would be comfortable with your trainer or e-learning vendor being cross-examined about relevant credentials.

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.

Harrassment Training is Now the Law in California -- Understanding the Basics of AB 1825 [PDF]

¹Gov't Code §12926(r)