Sexual Harassment Training : ELT, Inc. : AB 1825, Employment Law, Online Harassment, Compliance, and Harassment Training

I had a familiar conversation with a prospective client today. The company had purchased a large “library” of compliance courses three years ago from a well-known vendor. As the contract approached its renewal phase, the company ran an audit of actual course usage. The results were not good.

For this particular client, out of a library of 60+ licensed courses, only 7 had been used.  Out of this 7, 95+% of the usage rate was for 2 programs -- harassment prevention and ethics. That made the price point per user soar from less than $1 to more than $40. That’s a big jump. And it’s a jump that made the General Counsel say “go find another solution.”

This phenomenon continues to repeat itself among U.S. employers. Several years ago, many companies purchased large volumes of e-learning content, buying into the philosophy that more content equaled more value. Boy were they wrong.

This volume approach results in two critical problems: (1) you pay for a whole whack of stuff you never end up using, and (2) the quality level of what you do use is marginal, as development efforts have been watered down across so many different products.

Most prudent employers spend the bulk of their compliance training efforts, and dollars, on harassment prevention and ethics. That’s the reality. The numbers tell a clear story. 

The efficacy of this approach has also been supported by the General Counsel Roundtable (GCR). Its 2004 study of compliance training concluded that there is “no statistically significant relationship between the number of hours employees spend in compliance training and either the level of legal liability or overall satisfaction with the compliance effort.”  In fact, according to the GCR study, too much mandatory compliance training actually creates confusion, and may increase legal liability. (View GCR compliance training study)  By the way – the CGR study also concluded that there is no difference in effectiveness between in-person and online training. Where were these guys at the AB 1825 hearings? See my Feb ’06 posts on the anti-elearning crusaders …

What’s the best practice? Determine what you need, and carefully consider the volume of training you can actually consume. Then buy or build the very best training you can in those areas. It’s the age old philosophy of quality over quantity.

Last week, I gave an interview about AB 1825 with SHRM Senior Legal Editor, Allen Smith. (SHRM AB 1825 article)

Much of the interview focused on the “ask a question” requirement in the new draft regs. In online programs, employers must provide learners with the ability to ask questions. Those questions must be responded to in no less than 2 business days.

Providing the ability to ask questions in an online training program through an e-mail hyperlink, telephone number, or both is easy. The more important question is, who is going to answer all those questions? 

My strong advice is to take on the function internally. 

An outside training vendor may not have the appropriate knowledge to answer questions, especially those relating to your policies. More importantly, what may seem like a simple question could actually be a harassment complaint requiring an investigation. Failing to respond to complaints can create significant liability. Imagine rolling out a harassment training program, and actually creating liability, because complaints were not properly pursued.

So in addition to confirming that your online training program includes a mechanism for receiving questions, make sure that you set up an internal procedure to answer those questions. 

AB 1825 continues to underscore that compliance training and education is an ongoing process, not a one-time event.

Today, ELT and Sarah Reyes, Author of AB 1825, hosted a webcast for more than 1,800 participants on the new draft AB 1825 regulations. The turnout underscored the demand for clear facts and guidelines about California’s mandatory sexual harassment training law. 

Over the past 18 months, I have been saddened by the amount of misinformation being hurled at employers – everything from the contention that the law only permits live training (completely false, and largely promoted by live training vendors) to the absurd suggestion that 1825 does not allow training to address other forms of harassment, like race, disability and age (how could the California Legislature ever have intended this result??). 

Real facts about AB 1825 on the AB 1825 webcast PowerPoint.

During the interactive Q&A section of the event, more than half of the participants indicated that their organizations are training enterprise-wide – not just in California. While AB 1825 has placed renewed focus on harassment training efforts, the reasons for the expanded training are clear. Here’s a quick primer on the legal landscape:

• Maine mandated sexual harassment training in 1991; Connecticut in 1993. Contrary to popular belief, California is not the first state to pass a mandatory training statute. It is the first state to make the mandatory training obligation ongoing (every two years.)

• Under the landmark decisions Faragher and Ellerth, the US Supreme Court has strongly promoted mandatory harassment training for all employees (not just supervisors) since 1998.  Training helps to establish an “affirmative defense.”  The USSC standard also promotes “periodic” training, which, given AB 1825, most people are now accepting means every 2 years.

• Numerous state courts have followed the Faragher and Ellerth standard, promoting training as a way to establish defenses to harassment and discrimination claims. New Jersey is a good, fairly recent example. (New Jersey harassment defense article)

• The EEOC has pushed harassment training since 1999. (EEOC harassment guidelines)  The same year, the USSC took it a step further, and in Kolstad, recognized that harassment is just one form of discrimination. According to Kolstad, all supervisors should receive training on general Title VII principals, including discrimination in hiring, performance management and terminations.

• Training has shown a tangible ROI in terms of preventing claims, and reducing costs for employers. (Training ROI analysis report)

At ELT, we are seeing that the California mandate has become the “arrow-head” for the broad scale adoption of harassment training across the enterprise. We have many clients that started with “California only” training in 2005, and have since expanded to all employees in 2006. They are applying the CA standards to all of their harassment training (in terms of length, content, presentation format).

So while California may not be the first state to truly mandate harassment training, it has certainly tipped the balance in favor of enterprise-wide, mandatory training. 

And if you don’t feel like following California, chances are, you may have to anyway somewhere down the road. According to Sarah Reyes, she continues to be contacted by state legislators seeking her assistance in promoting AB 1825-like legislation in other states.

Better to stay ahead of the curve – especially when you know what’s coming.