Amendment of California harassment training law expected

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August 15, 2006
By Allen Smith

The reach of California's mandatory harassment training law—AB 1825—may soon be scaled back, as the state legislature has approved a measure—AB 2095—to limit mandatory training to supervisors within the state.

The legislature sent AB 2095 to Gov. Arnold Schwarzenegger on Aug. 28. The next day, the California Fair Employment and Housing Commission issued its third draft of proposed regulations to implement AB 1825. Among the latest draft's changes was a new definition of "supervisory employees," which now excludes supervisors outside the state.

The change was made in anticipation that the governor will sign AB 2095, which was supported by the California Chamber of Commerce and California Employment Law Council, according to Shanti Atkins, president and chief executive officer of ELT, which provides online training with content from Littler Mendelson. Council members did not think that the original intent of the harassment training legislation "was to affect supervisors who might be employed throughout the world," noted a legislative summary.

But Atkins still thinks that employers should provide harassment training to supervisors outside California. It's not just the ethical thing to do, but an effective way to limit possible liability under Title VII, she told HR News. The number of supervisors who are outside California but have employees in the state is relatively small, she remarked. Still, Atkins said, harassment training for them is advisable, as damages are elevated under Title VII for employers that fail to provide harassment training.

David Goldman, managing attorney of Littler's Legal Learning Group in San Francisco, agreed. Affected employers generally will want managers outside the state to have the same training as those who report to them, he reflected.

It could be awkward if, for example, a district vice president in New York interacted with managers in California but didn't have the same awareness about harassment issues as his or her reports, he hypothesized. In any event, he said, the draft harassment regulations were changed "without much hubbub" to exclude supervisors outside the state.

Training year resurfaces

Other changes by the latest draft regulations included the reintroduction of the concept of a training year tracking method and refined definitions for "instructional designer" and "qualified trainer."

The training year tracking method was in the first draft regulations issued at the end of 2005 but disappeared from the second draft issued in June 2006 because, as originally worded, it would have allowed employers to let almost three years go by without retraining managers. For employers that conduct business in California and have at least 50 employees, AB 1825 requires retraining managers on how to prevent harassment at least every two years as well as training for new managers within six months.

For purposes of meeting the 50-employee threshold, employees outside the state are counted, even under AB 2095. In a compromise with the labor community, the California Employment Law Council agreed "that all employees will be counted, wherever they are located, but that the training will extend only to supervisors in California," according to legislative bill analysis.

Under the third draft regulations, employers may provide individual tracking, measuring training two years from the date of completion of the last training of individual supervisors, or track by training year. If training year tracking is adopted, an employer that trained all its supervisors in 2005 would, for example, set 2007 as the next training year. "Under the training year method, no supervisor shall be retrained any later than six months from the anniversary date of his or her last training," the draft regulations state.

In so-called "down years," newly hired or promoted managers in California still would have to receive at least two hours of harassment training within six months of hire. But employers, particularly large ones, probably would not want the administrative hassles of tracking these new employees' training individually and might opt instead to track them by the training year, Atkins said. So, new managers hired in down years would have harassment training two years in a row. She called the latest draft's tracking year provisions "a happy medium" between the first and second drafts.

The definition of "instructional designer" was revised to reflect the fact that the person with the technical expertise to make e-training look its best often is not a subject matter expert, Atkins explained. She noted that the definition of "qualified trainer" was changed so that a live trainer could provide harassment training if he or she was a skilled trainer but not a subject matter expert. But Atkins recommended that a subject matter expert also be present for questions that an inexpert trainer often would not be able to answer. Training under the law may be fulfilled in person or by e-learning.

Effective training

Atkins said she thought that the draft regulations are "in very good shape," noting that compliant training should, according to the draft, educate managers about principles on how to prevent unlawful sexual harassment. A mere recitation of case law and citations won't be helpful and sometimes could be harmful, she cautioned.

Goldman also thought the draft regulations emphasize the importance of effective training. The draft provides that the training must assist employers in modifying workplace behaviors that create or contribute to sexual harassment. In addition, the training should "develop, foster and encourage a set of values in supervisory employees who complete mandate training and education that will assist them in preventing and effectively responding to incidents of sexual harassment," the draft states.

Goldman described this as an important, philosophical change. If mandatory managerial training to prevent harassment has to be done anyway, it might as well be the most effective, he remarked.

Comments on the proposed draft regulations are due Sept. 22 and should be sent to Ann M. Noel, Executive and Legal Affairs Secretary, Fair Employment and Housing Commission, 455 Golden Gate Ave., Suite 10600, San Francisco, CA 94102, or to mailto:regs@fehc.ca.gov. The commission will decide whether to adopt the Aug. 29 modified regulations or make further changes to the proposed regulations at its next telephonic meeting, which is scheduled for Oct. 2 at 9 a.m. at various locations throughout the state.

Allen Smith, J.D., is SHRM's manager of workplace law content.

Related article:

Draft Calif. rule mandates responsive harassment training, HR News, July 13, 2006.

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