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

Two of the biggest harassment scandals in recent months have come from Boeing (married CEO has affair with female subordinate and is forced to resign) and Toyota (North American CEO’s improper sexual conduct results in $190-million claim, and subsequent high profile settlement.) 

What both cases have in common is the role of training in remedial efforts.

On Tuesday, Boeing chairman and CEO James McNerney apologized for the recent series of scandals that have forced out two of his predecessors and led the company to pay a record $615 million settlement to the Justice Department. Boeing’s ethics code will be woven “into the fabric” at all levels of the company. The company has announced beefed up ethics training and will now requires employees to sign a code of conduct and participate in an annual “ethics recommitment” session.

As part of the Toyota settlement announced today, the company will boost harassment-awareness training. It will also set up a panel (led by former U.S. Labor Secretary Alexis Herman) to critique its workplace policies.

These remedial measures are designed to prevent similar conduct (and explosive damages) in the future. My vote? If they’re taken seriously, and managed properly, they’ll be successful. That’s a lesson for all employers looking to avoid these kinds of problems in their organizations – and a reason to embrace training.

But the key is to deploy training that works -- training that actually speaks to employees, and puts your policies into an understandable, and memorable experience. It’s why at ELT we believe so strongly in high production value, story-based training.  

Employees are sophisticated consumers of technology, and knowledgeable about harassment and discrimination, which permeates the daily media. These are learners who will roll their eyes at a poor quality, text driven experience. Ditto for cutesy cartoons, rudimentary graphics or schlocky stock photos. Providing a low-end, “check the box” experience may actually increase risk and send the message the employer doesn’t really take discrimination prevention seriously.

Whether you’re building a program, or buying one, step out of your role as a legal, HR or ethics expert, and ask yourself how you would perceive the program. Is it interesting? Helpful? Realistic?   Would you recognize and appreciate the value of taking time out of your busy day to take the training? 

The answer to all of these questions should be a resounding “yes” – otherwise, you may be wasting your efforts.

When it comes to compliance training, most organizations want ready-made programs that can be easily adjusted to fit their policies and brand. The goal is to buy an off-the-shelf product that can accommodate changes, quickly and cheaply. In short, employers want the best of both worlds. If a program is well designed, meeting that need should be easy.

This is where the distinction between customization, and configuration is so critical. “Customization” is the process of making content-specific changes to an online course. Customization involves taking client materials and incorporating them into the program. If the program has been designed with a hard, linear format and a fixed set of learning objects, these changes are typically “one-offs,” to use the popular production lingo.

Aside from carrying a high price tag, this traditional approach to customizing for company-specific content involves a great deal of resources and project management – both on the client and customer side. My experience has been that the required investment is usually grossly underestimated, and what appeared to be simple turns into a costly, and frustrating process.

That’s where configuration makes a big difference. An e-learning program that is configurable anticipates common customer requests, and already has a solution ready (no custom build out necessary). The client simply selects or de-selects the component. It’s as easy as saying “yes” or “no” to a feature. 

The most powerful of these options relates to content. Do you want your harassment prevention training program to cover transgender issues? Yes or no. Do you want your program to address mental disabilities? Yes or no. Do you want supervisors having access to a 50-state survey that outlines remedies and protected categories? Yes or no.

Configuration also encompasses branding issues. Logos can easily be inserted on every page, because the program has been built in a way that assumes the change. Placeholder screens are “hidden” at the end of every course section, waiting to accommodate custom content.

If a program is designed to be configurable, you should be able to “build” a custom course at an extremely low cost. Configurable architecture requires your training provider to have thought through a lot issues ahead of time, and to have pre developed much more content than you are likely to ever select or use. By way of example, ELT’s harassment training program is designed to be 1 hour for employees, and 2 hours for supervisors. We actually developed 4+ hours of content to offer clients a powerful range of configuration options.

So ask your training vendors questions about their configuration capabilities. Configuration can give you the benefit of a completely custom solution without the time and expense of “from scratch” development. It’s the e-learning equivalent of having your cake, and eating it too (online that is …)

Record turnout at our recent AB 1825 webcasts has underscored the demand for clear and accurate information about AB 1825 and its accompanying regs. But these webcasts aren’t just for CA employers. In fact, more than 40% of the attendees at our last event (7/27/06) were not CA-based.

Federal laws and other state laws have pushed harassment training for many years.  (See my 7/26/06 post for a quick overview and primer.) AB 1825 (and its accompanying regs), however, is the first law to really scrutinize the quality, content and methodology of training. It is setting the standard for the rest of the country. Understanding its requirements is therefore critical for all employers, regardless of location.

To put this in practical context, consider the following example -- Imagine you’re located outside of CA, and your organization is the subject of a serious harassment lawsuit. You’ve done extensive training, and plan to use that training defensively. Ok – good. 

Now think about the other side’s strategy. Plaintiffs counsel will naturally be looking to attack your training – you are using it as a shield after all. What standards do you think he or she might use? California offers the only real standards available in the area, and frankly, they are common sense requirements that underscore any good training effort – particularly forced interactivity for e-learning. Now those CA regs don’t seem so irrelevant …

This is how AB 1825 and its regs may end up directly impacting you after all.

Now imagine you do have some operations in CA, but limited intensive training to the state. That’s a very problematic inconsistency issue for your harassment situation which occurred outside of CA– especially if you find yourself in front of a jury. Even if you did provide training in your other locations, but training that’s not as robust as the CA standard, the AB 1825 framework is going to come back to haunt you: 

“Ladies and gentlemen of the jury. This company doesn’t care about actually preventing sexual harassment. It cares about bare minimum compliance. While employees in California received two intensive hours of interactive training, your fellow [insert state] residents received a rudimentary primer that lasted only 30 minutes ….” 

Well, you get the idea.

This is why a single, national training program, consistent in content and design, is the best approach to harassment prevention education. And it’s why AB 1825 is pertinent for all you non-Californians.

So I hope to see you at our next Reyes / AB 1825 webcast! In response to enormous demand, we’ve added another event on Thursday, Sept 21 at 11 am. (Register for the AB 1825 webcast.)

Today, the FEHC met in LA to issue a third set of draft AB 1825 regulations.  Another public comment period is now open until September 15, 2006. (Details on the new AB 1825 regulations. Details on the AB 1825 public comment process.) 

As anticipated following the June 2006 regulations, the changes are not extensive, but there are three important revisions:

(1) AB 1825 Now Only Applies to Supervisors Located in California  

Previously, AB 1825 applied to supervisors not physically located in California, as long as they directly supervised employees in California. Now training is limited to supervisors resident in CA.

Why the change? AB 2095. One of the provisions of this bill, sponsored by the California Employment Law Council and The Chamber of Commerce, limits the application of AB 1825 to supervisors who are resident in California. The bill passed both houses and their committees with almost no opposition, and went to the Governor on August 28 (one day before the most recent AB 1825 regs were released.) The Governor has 30 days to sign or veto it.  

Given the limited opposition, I strongly suspect Schwarzenegger will sign AB 2095. Under CA law, Employers will no longer need to train out-of-state supervisors.  Given federal harassment training standards, however, there is still a strong justification for training all supervisors, regardless of their location.

(2) The Training Year Tracking Method is Back, But Modified

An employer can designate a “training year” to train supervisors, and thereafter, must again retrain all of its supervisors by the end of the next “training year,” two years later; even those newly hired or promoted supervisors who received training the prior year. However, unlike the language in the Dec ’05 regs, which originally permitted training year tracking, no supervisor can be retrained any later than 6 months from the anniversary of his or her training.

• Dec ’05 Training Year Method – Jack received training on Jan 15, 2005.  Jack must be retrained no later than Dec 31, 2007.
• June ’06 – No Training Year MethodAllowed– Jack received training on Jan 15, 2005.  Jack must be retrained no later than January 15, 2007. (“Individual Tracking” Method)
• New Aug ’06 Training Year Method – Jack received training on Jan 15, 2005.  Jack must be retrained no later than July 15, 2007.

So practically speaking, this lengthens the training cycle for existing supervisors by up to 6 months. For newly hired and promoted supervisors, using the training year method may shorten the training cycle.  Under the August 29 regs, if you designate ’05 and ’07 as “training years,” new hires trained in ’06, under the training year method, would have to be trained in ’07. 

But – employers can use a combination of the individual tracking method and the training year method. So, if an employer uses the training year method for the bulk of its employees, but then has a round of new hires, the new hires can be on the individual tracking method for retraining. 

My recommendation? Choose the training year method for all employees, and just require some new hires to get trained two years in a row.  This method will be much easier to administrate in the long run, and would only result in back-to-back training after the first year of hire.

(3) A Refinement of the Expertise Requirements

• For All Forms of Training – A “Subject Matter Expert” is still defined as someone who has a legal education, coupled with practical experience, or substantial expertise in harassment, discrimination and retaliation

• For eLearning – “Instructional Designers” and “Subject Matter Experts” have been separated as to their expertise requirements. An “Instructional Designer” of e-learning is now defined as the person who simply has expertise in “instructional best practices,” and who develops training based upon the material provided by a Subject Matter Expert.

• For Live Training and Webinars – A “qualified trainer” is now simply a person that has substantial experience in effectively leading in-person training or webinars. The actual trainer does not need to meet the threshold of a “Subject Matter Expert,” but must have a training background.  However, if the trainer is not also a Subject Matter Expert, a supplementary Subject Matter Expert must be available to answer questions during the training session, or within two business days.  

In terms of the practical implication, this makes classroom or webinar training led by someone who is not a Subject Matter Expert, really challenging.  It seems a whole lot easier to just make sure your live presenters are Subject Matter Experts.

The regulations should be finalized before the end of the year. Stay tuned to this site for details on the adoption date, and the compliance time frame.

We are in the home stretch!

A more detailed review of the August 2006 AB 1825 regulations.

The State of Illinois yanked thousands of training certifications because employees were able to blast through the online course too quickly. Some employees spent less than 10 minutes completing the state’s annual ethics training, which requires 58,000 employees to review approximately 80 screens, including five “self help” questions, and an end-of-course quiz. (Full Illinois ethics training article) 

Now that’s a lose-lose situation. An employer invests significant dollars in online compliance training, employees actually complete the program, but the ability of learners to subvert the entire process invalidates approximately 10% of the compliance records. Almost 6,000 of them. Ouch.

This is the problem that can arise with “check the box” style training that does not truly engage a learner, or require them to consistently interact with the training materials. It illustrates why not all e-learning is created equal. 

A well-designed ethics course, both in terms of content and instructional design, would not allow a learner to breeze through in just minutes. Think of the message a 10-minute program sends to employees about the organization’s true commitment to compliance. Think of how easy it would be to attack that training in a legal or administrative proceeding should the program ever need to be used defensively.

This is just another area where best practices for ethics training and harassment training intersect. There’s a reason why California has created stringent requirements for the state’s mandatory harassment training law, AB 1825. It’s to avoid debacles like the one in Illinois. The AB 1825 regs require that harassment training be highly interactive, and that it be completed in no less than two hours. (AB 1825 regulation details)

The Illinois situation highlights some other important considerations when it comes to designing or selecting compliance programs.

• What purpose does a scored quiz serve? At the State of Illinois, the 6,000 employees with now invalid training records passed the course’s quiz. Obviously, the test was not vigorous enough to allay concerns, which suggests it was watered down and far too easy.

This highlights a big problem with testing: If you design a test that will challenge senior leaders and sophisticated learners, you will get large failure rates when the quiz is taken by everyone in the organization. What do you do with the learners who don’t pass? How do you ensure remedial efforts with all of them?

If you make the quiz simple enough for entry-level employees to pass, the quiz may become so basic that it serves no purpose and is not taken seriously.

The better answer:  create different course versions for different audience segments. Then use challenging, interactive questions (appropriate for the employee level) to reinforce key learning concepts. Learners should not be able to proceed until questions are answered correctly, but you should leave scored quizzes out of your programs.

• How are you positioning the training within your organization? Your learners should understand that the training is important to the organization and a part of their job function. Here, that message was apparently lost. Employees complained that the training took them away from the jobs – reflecting a “get this over with and get back to work” mentality. Further, the course design left learners with the impression that all they needed to do was pass the quiz. 

Here’s the bottom line – online ethics and compliance courses should help solve training challenges – not create them. Employers are coming under increasing scrutiny regarding the effectiveness of their training programs, both internally and externally. 

Demand high quality.