A new revision of the FEHC regulations supersedes the content of this post. View the latest AB 1825 information.
Today, California’s Fair Employment & Housing Commission (FEHC) adopted revisions to the state’s AB 1825 sexual harassment training regulations. The revisions are designed to address changes requested by the Office of Administrative Law (OAL), which rejected the FEHC’s November 2006 regulations approximately three weeks ago.
You can read the full text of the revised AB 1825 regulations here. There will be a public comment period starting tomorrow (February 28) and ending on March 14.
The purpose of this post is to help you understand these revisions, and their practical impact on employers. The substantive changes are limited entirely to defining expertise requirements for training. There are no changes to required training content, approved methodologies (e-learning, classroom, webinars) or requirements for tracking and calendaring training. (An overview of all the AB 1825 regulations is available here.)
Understanding the Critical Roles – Instructional Designers, SMEs and Trainers
To understand the OAL change requests and the FEHC revisions, it helps to understand how training is developed.
Typically, whatever the form of training (e-learning, classroom or webinar), an instructional designer works with a subject matter expert to develop the basic training materials.
An instructional designer is a training professional who knows how to design an effective learning experience. A subject matter expert is just that—someone who knows a lot about a particular subject.
Finally, in classroom training or webinars, there is the trainer…the person who actually delivers the material and facilitates the session. This distinction illustrates an important recognition by the FEHC that experts don’t necessarily make good course designers or teachers.
Unfortunately, this wasn’t well expressed in the November 2006 regulations submitted to the OAL, whose job it is to check for consistency and clarity. They had two substantive objections:
(1) The criteria for who would qualify as either a “trainer or educator” or as a “Subject Matter Expert” were not sufficiently specific; and
(2) It was unclear exactly how someone could be a “qualified trainer” without also being a “Subject Matter Expert”.
The other issues raised by the OAL are simply format related. (The full text of the OAL letter can be found here.)
New Expertise Definitions
In response, the FEHC’s new AB 1825 regulations clarify the criteria for being a “Subject Matter Expert” and a “trainer or educator.” The definition of “instructional designer” is unchanged.
Briefly, anyone who is a “trainer or educator” will need to have three years of experience designing and conducting discrimination, retaliation and sexual harassment training programs.
The criteria for qualifying as a "Subject Matter Expert” are much more specific and stringent than before:
1. Attorneys, admitted for three or more years to the bar of any state in the US, whose practice includes employment law; or
2. Certified Human Resources Professionals (by SHRM or via a higher certification) with three years practical experience involving discrimination, retaliation and sexual harassment (e.g. providing training, conducting investigations, responding to complaints or advising employers); or
3. Professors and instructors in law schools, colleges or universities with three or more years teaching experience about employment discrimination laws (or 25 instruction hours); or
4. Individual consultants with three or more years of experience providing professional advice about discrimination, retaliation and sexual harassment.
Expertise and Type of Training
Classroom training and webinar training must use the same types of expertise. The materials must be developed by a Subject Matter Expert and be delivered by a trainer or educator.
Under the regulations, it is possible to be a “trainer or educator” without being a Subject Matter Expert, and vice-versa. So … you might have a SME developing content for training, but s/he does not conduct that actual training session. You might also have a trainer conducting a classroom or webinar session, but s/he does not meet the qualifications of a SME.
The critical issue in the latter scenario is: Who is going to answer questions from trainees?
The revised regulations allow for questions asked in a classroom or webinar training session to be answered after the session by a SME within 2 business days—exactly parallel to the requirement for e-learning. Even though this is a possibility, most organizations who are using classroom training or webinars will want to ensure that the person delivering the training is also a Subject Matter Expert. It’s just more efficient.
E-learning must be developed by an instructional designer in conjunction with an SME. The program must provide a mechanism for learners to connect to a Subject Matter Expert for any questions that arise, and those questions must be responded to within two business days. Note that this is a change from the previous version of the regulations which specified that questions needed to be routed to a “trainer or educator.”
What Does this All Mean Practically?
These requested changes delay the effective date of the regulations to April or May of this year. Remember, however, that the requirement to provide two hours of effective training remains—AB 1825 itself is still in effect. Most employers are up against a December 31, 2007 training deadline.
It is worth taking note, however, of the more stringent requirements that are being placed on who can develop and deliver training programs. You should take steps to ensure that the individuals involved in your training plan—whether internal or external—have adequate credentials and experience.
While the particular definitions may change over the next few weeks during the public comment period, the message from the FEHC is clear—they want to ensure that AB 1825 training is created and conducted by experienced professionals, and that organizations are not just “checking the box.”
The best advice is to be working with people who have been doing harassment and discrimination training long before AB 1825 was passed.
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