Finally, California Sexual Harassment Training Regulations Are Final

July 25, 2007
By Joanne Deschenaux

After almost two years in the rule-making pipeline, final sexual harassment training regulations are in place in California. On July 18, 2007, the Office of Administrative Law Judges approved the latest draft of the regulations to implement Assembly Bill 1825, the state law requiring sexual harassment training for supervisors. The final regulations go into effect Aug. 17, 2007.

No changes were made to the draft regulations. But the existence-more than three years after the law's passage-of final regulations is important for two reasons, said Shanti Atkins, president and chief executive officer of ELT, an online training provider that uses content from Littler Mendelson.

First, she told SHRM Online, for those employers that decided not to pay attention to the regulations until they were final, the time has come. "People were growing weary," Atkins observed, "starting to say this was a never-ending roller coaster of draft after draft and that we're not going to comply; we are not going to see finalized regulations in 2007. But most employers have a Dec. 31, 2007, deadline to comply with the regulations. Now it is no longer optional to comply."

And for another group of employers that may have been unaware of the regulatory process, the finalization of the regulations "is a wake-up call," Atkins said. "These employers will come to notice that there are regulations and that they are intense."

It is likely that there are a "whole slew of employers" that have training programs that are not in compliance with the regulations, Atkins noted. In the absence of final regulations, many employers felt that as long as they made an effort and did some type of training, that was enough to comply with the law.

The question for employers used to be, "Did you do training?" But now, Atkins said, the question should be, "How did you do your training?"

Keeping Track of Online Training Time

Atkins singled out three specific regulatory requirements that may pose problems for employers. The first is the mandate that each person covered by the law take at least two hours of training every two years. While this is unlikely to be a problem for those employers who choose to do in-person training, it clearly presents challenges to those who opt for online instruction. Atkins asked, "How do you police the two-hour time limit when it comes to online training?"

Employers should have a "well-designed system that complies with the regulations without irritating the users," she answered. "There are good and bad ways to comply."

One bad way to comply, said Atkins, is to build a clock into the program. For example, if the program consists of 120 web site pages, there could be a clock that counted down 60 seconds and then automatically advanced the page. This would result in programs stretching out content that isn't two hours long, Atkins said. "It sends the message that this isn't really about learning and engaging and interacting, it's about tracking the clock. You want people to focus on the course, not on the time."

A better way to comply with the two-hour requirement consists of four critical components, according to Atkins. "Design a program that takes people on the average two hours. Start there." Timing the program should be a safety net for those trying to cheat or for those who are rapid learners, Atkins said.

Second, set the expectation that the users will take at least two hours to finish the program and tell them that they will be policed, Atkins said. She also recommended that the program contain a mechanism that can give a warning that a program user is going too fast and will tell him or her to slow down.

Third, punish people for random clicking. "In order to advance the program, you have to engage it," Atkins suggested. The program should contain questions that must be answered correctly before the user can proceed to the next screen.

Fourth, the program needs to "remember" where a learner was, and, if the learner stops the program, be able to take that learner back to the place where he or she left off.

Answering Learners' Questions

Another possible problem posed by the regulations stems from the requirement that the employer answer all learners' questions within two days. Therefore, an online program must contain a link through which users can ask their questions, and the employer must have someone to answer them. Again, Atkins gave examples of a good and a bad way to meet this requirement.

A bad solution, she said, is to outsource the answering of the questions. "That is problematic because if a program is well-designed and comprehensive and is generating questions from users, most questions will be specifically related to the employers' policies or to complaints that have arisen. An outside vendor will not be able to handle the nuances of a particular employer's policy."

Instead, Atkins recommended that an online program have a searchable database of frequently asked questions (FAQs). A user can enter the database and get an instant answer. If the answer is not available, the user can direct his or her question to the employer. A question that gets through the "filter" of the FAQs likely will be related to the organization's policies and is best answered by someone within the organization, Atkins said.

Trainers' Qualifications

The last round of revisions to the regulations was prompted by disagreement over the necessary qualifications of those who do the training, Atkins pointed out. "The standard is high," she said. "That's what all the debate was about-about who was an expert and who could build these training programs."

Therefore she recommended that companies not get "some generic training company to do this and not have inexperienced HR professionals do it." There is a much higher level of expertise required, she noted, and "you must ask tough questions of vendors to make sure they are expert enough."

Joanne Deschenaux, J.D., is senior legal editor for HR News.