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

Yesterday, California’s Fair Employment Housing Commission issued a fourth set of draft AB 1825 regulations. Another public comment period is now open until October 20, 2006. (Details on the new AB 1825 regulations. Details on the AB 1825 public comment process.)

The changes are not extensive, but there are three revisions of importance:

(1) The Training Year Method of Tracking Has Been Modified Again

The Training Year Method first appeared in December 2005, was deleted in June 2006, and came back modified in August 2006. It has been modified yet again – but in a way that provides even more flexibility for employers, especially those with large workforces and high turn over.

Under the Training Year Tracking Method, an employer can designate a "training year" to train some or all of its supervisors, and thereafter, must again retrain these supervisors by the end of the next "training year," 2 years later.

• For example, Company X designates 2005, 2007, 2009 etc. as "training years." 
• Doug completes his first training program on January 26, 2005. Doug must be retrained no later than December 31, 2007.

Practically speaking, as illustrated above, the Training Year Method can lengthen the training cycle for existing supervisors beyond 2 years.

For newly hired and promoted supervisors, using the Training Year Method may initially shorten the training cycle:

• For example, Company X designates 2005, 2007, 2009 etc. as “Training Years.” 
• Doug is hired on March 1, 2006. Doug’s first round of training must be completed within 6 months of hire – September 1, 2006. 
• Under the Training Year Method, Doug’s first round of re-training must be completed by December 31, 2007 – less than 2 years from his first training date. The second round of re-training would need to be completed by December 31, 2009, back on the 2-year schedule. 
• Alternatively, the Individual Tracking Method can be used for Doug, and his first re-training deadline is September 1, 2008. The second re-training deadline is September 1, 2010. 
• In this example, Company X cannot designate an “alternate set” of training years (2006, 2008, 2010 etc.) for new hires and promotions like Doug. According to the October 2006 regulations, “[a]n employer shall not extend the training year for the new supervisors beyond the initial two year training year.”

As illustrated above, employers can use a combination of the Individual Tracking and Training Year Tracking Methods. So, if an employer uses the Training Year Method for the bulk of its employees, but then does a round of new hires, the new hires can be on the Individual Tracking method for retraining.

Some employers will still choose the Training Year Method as the only choice for tracking, and require some new hires to get trained two years in a row. Why? Because it is easier to administrate in the long term, and the "back-to-back training" incidence would only occur after the first year of hire. Then the employee would cycle into the every-other-year-"Training Year" method.

(2) The Expertise Requirement is Further Defined

Subject Matter Experts who provide content for e-learning, or who conduct live training, must have: (a) a legal education coupled with practical experience; or (b) substantial practical experience.

The October 2006 regulations now specify that “substantial practical experience” must be in “training in harassment, discrimination and retaliation prevention.” Previously, the regs simply stated experience was needed generally in “harassment, discrimination and retaliation.” The expertise threshold now applies specifically to experience in training in these areas.

(3) Employers Who Rely on Training From A Prior Employer Must Ensure It Was Legally Compliant

Since June 2006, the regs have allowed organizations to rely on training from a prior employer. New hires or promotions who received harassment training within the last 2 years only need to be provided with a copy of the new employer’s anti-harassment policy, which they must read and acknowledge within 6 months of hire/promotion. Their re-training schedule will be based on 2 years from the last training date.

However, the October 2006 regulations now specify that the new employer has the burden of establishing that the training provided by the prior employer was legally compliant with AB 1825.

As far as I’m concerned, this “flexibility” to rely on prior training just isn’t worth it. First, you have to track and archive training dates of a prior employer. Second, and more importantly, the time and effort required to adequately assess the compliance of prior training will likely be significant. Many training programs will not be compliant, especially given the elevated standards of the AB 1825 regs. Even if prior training is compliant, the organization loses the opportunity to ensure that every new hire/promotion receives consistent training content and guidance on harassment prevention.

The FEHC seems to be on track to finalize the AB 1825 regulations before the end of the year. That’s a good thing, because if the Commission isn’t done by December 16, 2006, the entire process must begin over again.

In the meantime, assume these regs are final. Are you ready for your 2007 re-training? Start planning now. It’s hard to believe, but we’re into Q4 and the holiday season will soon be upon us. Planning, implementing and completing training takes time -- more time than most people realize, or care to admit.

You can review detailed summary of the August 2006 AB 1825 regulations from ELT’s website.

In the past week, the EEOC filed a slew of high profile discrimination and sexual harassment lawsuits. On Monday, October 2, the Commission targeted several Bay Area employers for sexual harassment, including Sizzler Restaurant (operated by Worldwide Restaurant Concepts, Inc.) and Sharp Precision. In each case, the EEOC alleges that female employees faced illegal conduct on a nearly daily basis that ranged from derogatory comments, to inappropriate touching and physical threats.

These cases highlight the critical importance of preventative discrimination and harassment training, as well as the need for remedial training in response to misconduct.

In each case, the EEOC seeks not only monetary damages and injunctive relief from the employers, but has also asked the court to order these companies to provide employees with mandatory training on anti-discrimination laws.

In each of the situations, proactive discrimination and harassment training could have been provided at a fraction of the legal and operational costs associated with the misconduct.  Now, these companies are facing the costs of a lawsuit and damages, along with training, which if adopted earlier, may have prevented the problems in the first place.  And all of these employers will need to pay attention to AB 1825, providing their California supervisors with at least two hours of interactive harassment prevention training in 2007.

Just two days later, on October 4, the Commission announced three more employment discrimination lawsuits against the Atlanta Bread Co. restaurant chain (along with its owner, ARO Enterprises), BJ's Wholesale Club Inc. and auto-parts retailer, AutoZone Inc.  The complaint against the first two companies alleges racial discrimination against black and Latino employees.  The complaint against AutoZone accuses the company of permitting sexual harassment of several female workers.  It is highly likely that the resolution to each of these cases, whether court ordered or agreed to in a settlement, will involve remedial harassment and discrimination training.  

Training as a remedial tool is clearly an increasing trend in employment litigation – but that’s really not the most important take away here.  Nor is the fact that good training, if in place, can provide a protective shield to reduce liability and damages.  The real pay off is training that prevents the misconduct from occurring in the first place.  

And I’m not talking about a detailed, complex overview of state and federal laws. I’m talking about the basics – the kind of “101” information every employee and manager should have.

Does your organization embrace the basics?  If you do, the payoff can be huge.  If you don’t, the punishment can be crippling.

It’s hard to pick up a newspaper or turn on a TV without seeing coverage of the controversy surrounding ex-congressman Mark Foley. Whatever the fallout, the political storm highlights a topic that is getting increasing attention from the EEOC and employers alike: teenage workers. 

You may be surprised to know that there are more than 6 million teenage employees in this country.  You may be also be surprised to learn that the EEOC filed 15 lawsuits involving teen workers last year, compared with 8 cases in 2001. And that doesn’t include complaints filed individually by teens with the EEOC.

Not surprisingly, addressing teen harassment is becoming a priority for government prosecutors.  The EEOC, for example, has created a website, www.youth.eeoc.gov, just for teens.  It has also launched an outreach program that puts the Commission in contact with more than 112,000 teens, employers and educators.

In this environment, training teenage employees on workplace harassment issues and remedies is critically important.  More than virtually any other group, teenagers lack the experience to know when conduct is out of line, are nearly always in subordinate positions in the workplace, and are far more likely to put up with harassing conduct out of fear or embarrassment. 

How do you reach teenage workers?  In some ways, it’s the same problem faced by employers every day.  While teenagers are certainly more likely to zone out “lecture style” training programs, they are not the only group likely to be put off dry, text-based training, or unsophisticated programs that feature cartoons, rudimentary graphics and low production quality. 

So what do you do for employees that have vastly different levels of sophistication, experience or education?

Studies consistently demonstrate that realistic, story-based training appeals to the widest range of learners.  The combination of an engaging storyline, interactive exercises and real life scenarios will reach everyone, from board members to teenage workers.

The big take-away here is that we need to ensure that teenage workers are not taken advantage of in the workplace by providing effective education.  First and foremost, it’s the right thing to do.  It will also help protect against potentially crippling jury verdicts and inestimable damage to your organization’s good name and reputation in the event of a problem involving a teenage worker.