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.
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