California approves final AB 1825 harassment training regulations

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By Joanne Deschenaux
11/21/06

On Nov. 14, the California Fair Employment and Housing Commission (FEHC) voted unanimously to approve the October draft of regulations implementing AB 1825, California's mandatory harassment training law. "Once these regulations are adopted, training that complied with the law before will no longer comply," said Shanti Atkins, president and chief executive officer of ELT, which provides online training with content from Littler Mendelson, in a Nov. 15 interview. "The big question on everyone's mind is, ' When will training have to comply with the regs?' "

The FEHC must send the final regulations to the Office ofAdministrative Law (OAL) by Dec. 16, 2006, and the OAL then has 30 days to approve or reject the regulations. According to Atkins, because the regulations went through extensive drafting and redrafting, it is unlikely that the OAL will find problems with them. Assuming that the regulations are accepted, they automatically become effective 30 days later. "People should expect training that they do in February must fully comply with the law and the regulations," said Atkins.

Atkins noted three provisions of particular concern to employers in their attempts to meet the not-too-distant compliance date:

• The requirement that the training be interactive.
• The requirement that the training take two hours to complete.
• The necessary qualifications and level of expertise of the trainers.

Interactivity

The interactivity requirement presents major challenges for those employers who conduct their training online, noted Atkins. "California has legislated good instructional design for e-learning," she said. "No longer will programs that require trainees simply to read along and keep pressing the 'next' button meet legal requirements."

Michael Johnson, co-CEO of Brightline Compliance LLC, in a Nov. 14 interview, also remarked on employers' abilities to meet the training interactivity requirement by the time the regulations become final. He focused on the provision that online courses must contain links permitting the employees to contact the trainers and ask them questions. Trainers must answer questions within two days. "My clients are scared," said Johnson. "They don't have systems set up to acknowledge receipt of questions and make sure that questions are answered within two business days."

Length of training

The second troublesome provision of the regulations, according to Atkins, is the requirement that the training take two hours to complete. "The majority of e-learning programs are not in compliance," she said. Programs must have definitive audio files that add up to two hours, and employers are not sure how to achieve this goal. Atkins suggested that they might consider using timers to track how long trainees are spending on the program and incorporate a method to notify a trainee if he or she needs to slow down and take more time with any part of the training program.

Level of trainer expertise

The regulations require those conducting the training to be experienced trainers and experts in the field. To be a subject matter expert, the trainer must have practical experience in harassment, discrimination, and retaliation training, and knowledge of relevant California and federal laws. "In the 2005 training year, we saw lots of self-proclaimed experts. But that won't fly with the training now," Atkins said. "When evaluating a trainer," she advised, "ask whether you would be comfortable about that person being cross-examined in an administrative or court proceeding as to their credentials."

Definition of supervisor

In addition to the concerns expressed by Atkins, Johnson also pointed out that the broad definition of supervisor contained in the regulations might come as a surprise to some employers. The definition includes all employees located in California with 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," assuming that the exercise of that authority requires the use of independent judgment. Employers must take care, noted Johnson, to provide the required training not only to designated managers and supervisors but to all employees whose job duties include making the enumerated types of personnel decisions.

Getting Ready

"It takes time to set up training," said Atkins. "People underestimate how long it takes to buy or build the programs." In addition to the February deadline for compliance with the regulations, employers only have until the end of 2007 to get all their supervisors trained. Atkins recommends that employers begin immediately. "Now is a good time for employers to be building their training programs," she concluded.

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

A copy of this article is available online at
http://www.shrm.org/hrnews_published/archives/CMS_019312.asp#P-8_0