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AB 1825 & California Sexual Harassment Training Archives
Just last week, Governor Schwarzenegger signed into law The Safe Place To Learn Act, also known as AB 394. Even though this California law is limited in scope and application to the public school sector, employers across the country should sit up and take note. The outpour of public reaction to AB 394 paints a dramatic picture of the diametrically opposed, and passionate viewpoints that people (i.e. your employees) have about sexual orientation and gender identity. So let’s start with the basics. What’s AB 394 all about? Supporters of the new law say that it’s designed to protect students in public schools, including those who identify as lesbian, gay, bisexual, or transgender, from harassment and bullying at school. The new law requires anti-harassment training for students, parents, and teachers. Those on the other side of the coin have a very different point of view. They see the law as an attack on their beliefs, religion and morals. A quick search of the web reveals countless blog posts and comments from objectors. A few of the tamer comments include: “California conservatives won’t tolerate wide-scale denigration of their beliefs or the sacrifice of the traditional family on the altar of a pro-gay agenda. Practicing Christians (and Jews, and Muslims) won’t willingly attend classes that teach the one-sided ‘tolerance’ the left calls ‘fair.’” Excerpt from The Random Yak Blog.
The bill is not about safety. This bill is about sexual indoctrination and redefinition of gender.” Excerpt from San Fran. Bay Times Article (March 27, 2007)
Sexual Orientation and Gender Identity in the Workplace
Regardless of what side of the debate you’re on, HR and legal professionals should be watching this development closely. When it comes to human sexuality and gender, the tensions and emotions run deep … really deep. And your employees are only human. Each person brings his or her personal thoughts and beliefs to work each day. It doesn’t take much of a stretch to recognize that the attitudes and opinions surrounding AB 394, extend to the debate over protections for sexual orientation and gender identity in the workplace. Many of you have policies covering sexual orientation and gender identity, and many of you operate in locations where state law tacitly provides clear legal protections – ones much stronger than AB 394. In other words, you need to contend with the fact that a significant portion of your workforce is morally, religiously or otherwise stalwartly opposed to anti-discrimination measures for employees who identify as lesbian, gay, bisexual, or transgender. They actually take these legal and policy protections as an assault on their own liberties and belief systems. Talk about a tough HR challenge. And if you think that employees can have a civilized discussion about this stuff, think again. Any discussion that involves marital rights, gender roles, gay rights, religion and sexuality is bound to get heated – and dangerous. Each side firmly believes that the other is wrong. That’s a recipe that quickly escalates to righteous indignation, and ultimately, legal liability.
Employers Have to Set the Tone California’s AB 394 discourse is not an isolated event that employers can or should ignore. The laws relating to gender identity and sexual orientation are shifting. In the last year alone, four states (Iowa, Colorado, Oregon, and Vermont) passed new laws expanding employment law protections to sexual orientation and gender identity. (NGAL Task Force State Map of Non-discrimination Laws). We’ve also witnessed progress (although slow) at the federal level with the Employment Nondiscrimination Act. (Want my prediction? When the Democrats take the White House in 2009, we’re going to soon see federal discrimination protections for sexual orientation and gender identity.) What catches most employers off-guard is that they fail to really grasp how emotional these issues are for employees. They miss the signs of tension, or fail to give employees the right direction. The sad truth is that many employees just don’t get it – especially if they feel they can back their position up with religion. Your workers need to understand that there’s a time a place to voice their opinions about deeply held moral, religious, and political beliefs – but it ain’t at work. It’s up to employers to set a proper and respectful tone. And this is where harassment training takes a front and center position. As with most anti-discrimination efforts, education is at the heart of real and long-lasting change. Employees need to understand that certain communications and behaviors are just not appropriate in the workplace. Period. And they also need to learn that there are serious consequences for choosing to cross the line.
Live in Reality So – California leads the way, yet again, when it comes to harassment training and anti-discrimination protections. Love us for it, hate us for it, but live in reality when it comes to managing the practical fallout of a vicious civil rights debate that directly impacts your workforce.
It’s been exactly one week since the AB 1825 sexual harassment training regs became effective. Any training done after August 17, 2007, must align with strict and detailed requirements.
I know many of you are taking a careful look at your sexual harassment training programs and asking tough questions about compliance.
Last week, I blogged about the 2 hour timing rule. This week, I want to help readers tackle one of the required forms of interactivity for online sexual harassment training programs - that supervisors be able to submit questions during e-learning, and have those questions responded to within 48 business hours.
Inserting a link into an online program that allows your learners to submit questions is easy. Figuring out how to respond to those questions is where the challenges arise. Many employers fear they may not be able to answer questions in time - either because they have too many questions, or too few responders.
Not surprisingly, this creates a lucrative business opportunity for the training industry. Several e-learning providers are offering to answer questions for you - for a price.
But is outsourcing the response to potentially critical questions the answer? In my opinion, the answer for the overwhelming number of employers is “no.”
The costs and risks are just too high.
Let’s Start with the Practical Costs
Many of the training providers offering to answer employee questions brag that their sexual harassment training programs are used by several hundred thousand, or even several million learners. That’s a lot of employees with potential questions.
The problem is that these vendors simply can’t afford to hire a phalanx of qualified employment lawyers or HR experts to field the calls. You will be shocked if you ask potential outsource vendors two simple questions. How many people on your staff are dedicated to responding to questions? What are their qualifications?
Another practical problem is the quality of the “response.” Third parties sitting on a phone bank cannot possibly understand the nuances of your organization’s culture, sexual harassment policies or past practices. A quick response is no help if it doesn’t make sense in your environment – and may actually frustrate employees who get generic responses.
Anyone who has called a phone help line and gets an unqualified “customer service specialist” can empathize.
Finally, there’s the cost issue. Most vendors charge on a “per question” basis. You pay for every question - whether it raises a legitimate sexual harassment issue, or involves finding the “next” button at the bottom of the course page. If you have any kind of significant employee population, those costs could really add up.
And Now the Legal Risks
The legal implications of outsourcing responses to sexual harassment training questions can be huge. Clients often fail to understand that communications between your vendor and employees are not privileged, and can be used in court against you.
The lack of privilege is a giant potential landmine. Remember that the vendors talking to your employees will not have a history with your organization, or your sexual harassment policies. How comfortable will you be if plaintiff’s counsel projects an email communication between your vendor and one of your employees onto a court room wall?
The other legal red flag involves complaints. Questions that set off your duty to investigate sexual harassment claims are not always labeled as a “complaint.” They often take the form of inquiries or statements that should “sound the alarm” and kick start a sexual harassment investigation. Failing to respond quickly to sexual harassment complaints is the number one reason that employers are found liable for harassment, and pay out big damage awards.
Are you really comfortable letting a third party make this critical judgment call?
The Biggest Problem of All
Even with the serious practical and legal considerations, I think the biggest problem with outsourcing responses to learner questions is that it takes you out of the picture.
With questions going invisibly to third parties, you don’t see the ebb and flow of the harassment issues that employees are facing. You don’t get to police the quality of the response, and have no way to ensure that employees understand and properly apply the guidance they receive.
Most importantly, outsourced solutions mean that your organization doesn’t benefit from its best defense to a potential sexual harassment claim - your experience and judgment addressing and defusing potential problems. With outsourced solutions, it’s all in someone else’s hands - and you hope for the best.
So Who Takes the Call?
If outsourced solutions are not the answer, what is? I think the best answer is to choose the right sexual harassment training program in the first place.
A well designed sexual harassment training course will answer most employee questions up front, in real time – and at no additional cost.
The questions that then filter internally to your organization are the ones you should and need to handle yourself.
To minimize the volume of questions that are routed internally, and to maximize risk mitigation, choose a program that:
- Provides a clear orientation on how to use the sexual harassment training course. This eliminates a whole category of questions that may start your response time ticking.
- Clearly explains basic principles prohibiting sexual harassment in the workplace with realistic scenarios and interactive exercises.
- Provides learners with easy access to supplementary information resources - like an interactive content / topic guide.
- Includes a searchable FAQ tool that provides immediate answers to the most common questions that arise in sexual harassment training.
At ELT, we’ve taken this 4-step approach to help employers filter out the large majority of questions that are asked during sexual harassment training. Our interactive Q&A Solution provides a database of hundreds of questions and answers based on our years of experience specializing in harassment prevention training. AB 1825’s Q&A interactivity requirement is easily met with no additional cost, and without introducing unnecessary risk to the organization.
Whatever solution you chose (or build yourself), remember that it’s not just about racing to provide some response - any response - within 48 business hours. It’s really about getting your supervisors good information on harassment prevention and making sure that serious issues get the attention they deserve.
It’s hard to believe, but the next AB 1825 deadline for most employers is just 4 months away. While you tackle the challenges of getting training set up and deployed, be smart about streamlining the required Q&A component.
In three short days, AB 1825’s sexual harassment training regulations are effective. That means any training done after August 17, whether live or online, must comply not only with the text of AB 1825, but also it’s detailed and demanding regulations.
The regulations place a particularly high onus on e-learning. The most hotly debated requirement? That employers be able to demonstrate their sexual harassment training programs take supervisors “no less than two hours to complete.”
In other words, you need to police the time.
You can imagine why this provision garnered some very strong reactions from both employers and the training community. E-learning, at the end of the day, is supposed to be self-paced. How can a program maintain that quality, and yet also police a minimum training duration?
The “2 hours means 2 hours” requirement (to quote public testimony of AB 1825’s author, Sarah Reyes) is the single most common reason many harassment e-learning programs are out of compliance. I have viewed literally hundreds of programs, both built internally by employers, and purchased externally from vendors, that simply cannot meet the controversial timing rule.
So, let’s get down to practical solutions. If you’re building a sexual harassment training program, or purchasing one from a training provider, what do you need to look for? It really boils down to 4 simple components: - Content Rich. Make sure the program has enough robust content and interactive exercises, so that even without a timing mechanism, the average learner would need 2 hours to complete it. A timer mechanism should be a safety net for a program that is already designed to be 2 hours in length.
- Set the Tone. Your harassment training course needs to set a clear expectation with learners, right from the beginning, that they are going to be required to spend two hours in the program. Highlighting the fact that this is a statutory requirement can also assist with the “palatability” of a 2-hour course. (Remember, the AB 1825 regs expressly provide that training does not need to be completed in 2 consecutive hours – so don’t forget to let learners know they can still bookmark the program and take it in segments.)
- Require Interactivity. The best way to avoid having learners “cheat” the program, is to fill it to the brim with well designed and engaging interactive exercises. A good sexual harassment training program will punish learners for random clicking, and ensure that the vast majority of your employees are actually interacting with and digesting the material. There’s nothing like real learning and knowledge application to make those minutes fly by.
- Use the Right Timer. Here’s the most technical part. Your e-learning program needs a timing mechanism that:
- Doesn’t let employees finish in less than 2 hours. If learners reach the end of the program in less than 2 hours, they should be required to return to the portions of the program they clearly raced through.
- Warns employees periodically when they are going too fast.
- Does not artificially slow employees down. Any timer that requires a minimum amount of time per page, no matter how short, is poorly designed. This will make fast readers think there is a technical error. Your e-learning program should still be 100% self paced.
- Can work both with sound, and without.
- Counts active course time, not browser window time. In other words, the learner should only get credit for time spent interacting with the course. You can’t allow a learner to simply launch the course window, and then get credit for time spent on a phone call or checking e-mail.
- Is able to function properly with a bookmarking feature. When a learner logs out of the course, and then logs back in, the program needs to keep accurate count of previous minutes spent in the course. (This can be particularly challenging if you are integrating an outside vendor’s program onto your own Learning Management System.)
So. Can you see now why this portion of the regs was so controversial? While “2 hours means 2 hours” is a simple concept in live training, it gets a little more “nuanced” and sticky when it comes to e-learning.
Caution: There are good timers, and there are bad timers. A timer, for example, that “counts down” each course page, or artificially stretches out the time, is going to do you no favors. In fact, it will actually create risk, sending the message to your employees (and to juries and regulators) that you take a “check the box” approach to compliance – that you don’t actually care about good faith harassment and discrimination prevention.
To learn how a timer actually works inside a sexual harassment training course, you can check out ELT’s demo. SHRM also featured an article recently on the topic.
These regs took forever to finalize, but there’s no hiding from them now. 2 hours means 2 hours.
Can you prove it?
Today, July 18, 2007, The Office of Administrative Law (OAL) approved final regulations for California’s mandatory harassment training law, AB 1825. Employers have 30 days to ensure that their training programs comply with the new rules. The AB 1825 regulations have created groundbreaking, stringent requirements for all forms of harassment training, especially e-learning. They are impacting employers not just in California, but across the country.
Regulations Overview
As part of the Special Advisory Committee to the Fair Employment & Housing Commission (FEHC), ELT helped to create the regulations. Click for an updated AB 1825 overview. Webinars
ELT is offering two complimentary webinars to review the content of the new AB 1825 regulations, as well as the steps employers that must take to comply. Joining both webinars will be Executive & Legal Affairs Secretary for the FEHC, Ann Noel, who has principal responsibility for the regulations. Date: August 23
Time: 11 am PT / 2 pm ET
Click to Register Now Date: October 10
Time: 11 am PT / 2 pm ET
Click to Register Now Click for a guided tour of our 50-state and federal law compliant harassment course.
Today, the Fair Employment and Housing Commission met in San Francisco and adopted revised AB 1825 regulations which can be found at: http://www.fehc.ca.gov/act/harass.asp. Nothing has changed since the last regulations were circulated for public comment in late March. (You can read about what drove the last round of modifications in my March 27 post.) The regs now go to the Office of Administrative Law (OAL) for approval. Stay tuned for more information on a potential effective date.
On Tuesday, March 27, California’s Fair Employment & Housing Commission (FEHC) met to adopt revisions to its AB 1825 regulations. These revisions were driven by the public commentary that followed the Commission’s February 27, 2007 version of the regs, which were designed to accommodate change requests from California’s Office of Administrative Law (OAL). The OAL’s sole concern is the need for more clarity about who is actually qualified to create and/or present sexual harassment training programs, whether live or online. In other words, who is a qualified expert under AB 1825? The February 27 version of the regs made a distinction between “Subject Matter Experts” (those who know the content very well) and “trainers” (those who are, presumably, good at actually conducting a sexual harassment training session). The current draft eliminates the definition of Subject Matter Expert and moves the relevant qualifications to its definition of “trainer.” “Trainer” is Now the Critical Definition A “Trainer is defined as: (A) Attorneys admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or (B) Human resource professionals with two or more years practical experience in one or more of the following: a) designing or conducting discrimination, retaliation and sexual harassment prevention training; b) responding to sexual harassment complaints or other discrimination complaints; c) conducting investigations of sexual harassment complaints; or d) advising employers or employees regarding discrimination, retaliation and sexual harassment prevention, or (C) Professors and instructors in law schools, colleges or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964. An additional change to note is that the experience thresholds have been reduced slightly from the February 27 draft — from three years to two years, and from 25 instruction hours to 20. Team Training Is Permitted: The regulations then go on to say that individuals who do not meet these expertise criteria may “team teach with a trainer in classroom or webinar trainings provided that the trainer supervises these individuals and the trainer is available throughout the training to answer questions from training attendees.” So you can still have a classroom trainer who is not an “expert” in harassment and discrimination prevention – but an expert does need to be with him/her, in real time, during the session. Most organizations doing classroom or webinar training, in all likelihood, will choose to have it conducted by someone with expertise in harassment and discrimination prevention and who meets the “trainer” defintion. It just seems far more effective and efficient. So Many Versions of the AB 1825 Regs! Should I Care? Given the repeated revisions, you might be asking yourself if you should even be paying attention to these sexual harassment training regulations until they are actually finalized. We absolutely recommend that you do. The changes currently being made relate only to the issue of expertise. Frankly, any “good faith efforts” to comply with the text of the law (which is in effect – many of you have a December 31, 2007 deadline looming), should be tied to a program developed and/or delivered by true experts in sexual harassment prevention. As to the rest of the regs, while they may not be technically effective as of yet, they (a) represent basic good instructional design; and (b) are something you are going to have to contend with in any event, for many years to come. You should be planning your sexual harassment training as an ongoing process, not a one time event. So what you use over the next few months before the regs become effective, is what you should be comfortable using further down the road, when these extensive regs are non-negotiable. Stayed tuned to this blog for the latest updates on California, and beyond …o
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.
Today, the Office of Administrative Law (OAL) requested changes to the AB 1825 regulations adopted by California’s Fair Employment & Housing Commission (FEHC) on November 14, 2006. A letter detailing the OAL’s change requests will be public next week. I will of course post the details to this blog, and further information will be available at www.elt-inc.com. So the obvious question on everyone’s minds – Are substantial changes being requested to these laboriously vetted regs? The short and simple answer is no. According to the FEHC, which received a courtesy call from the OAL prior to today’s public announcement, the change requests are focused on refining definitions as they relate to subject matter expertise. The current regs require that “Subject Matter Experts” who provide content for training programs, and who may actually conduct live training programs, have"legal education coupled with practical experience, or substantial practical experience in training in harassment, discrimination and retaliation prevention." (More details on the current sexual harassment training regulations.) The OAL wants the definition of who is a “Subject Matter Expert” to be even clearer. That means we will be getting more detail about two components – what specifically qualifies as “legal education” (e.g. a JD? A certain number of years in legal practice?), and what specifically is required to have “substantial practical experience.” (e.g. a certain number of years of training experience?) Over the next several weeks, the FEHC will be working diligently with the OAL to refine the Subject Matter Expertise definitions, and adopt new final regulations. The regulations will be effective some time in the spring of 2007. Overall, this is a positive development. It will further curb the growing “cottage industry” of self proclaimed harassment training specialists who are devoid of true expertise. The substance of the regs is not changing, so employers who are underway in planning and deploying their 2007 training can simply stay the course and proceed with confidence. Where employers need to be even more careful, however, is erring on the side of caution when it comes to scrutinizing the expertise of their training resources – whether internal or external. The more detailed regs are likely to be even more specific and stringent about the level of qualification and experience required to either conduct live training programs, or to build e-learning programs. As HR, legal, ethics and training professionals, you should be asking even tougher questions about the true subject matter expertise of your training provider. While the FEHC and the OAL sort out this last minor detail with the AB 1825 regs, let common sense prevail. Just ask yourself the following questions: “Would I be comfortable with the developer of my online training program, or my live trainer, being cross examined in court about actual credentials and practical experience.” If you hesitate in answering that question, you may need to rethink your AB 1825 strategy. Some quick practical suggestions: - Avoid “Train the Trainer” programs where you rely on a single workshop to provide expertise to in-house trainers. Expertise cannot be created in a few short hours.
- With online training programs, ask to see detailed information about the background and credentials of course developers. (Hopefully, it’s more than 1 or 2 people.) Then ask for certifications or warranties about the actual involvement of these people in creating and updating an e-learning program.
- With live training programs, carefully review the background and practical experience of your presenter. Can s/he truly answer questions from the audience vs. being reliant on a course outline and script?
At the end of the day, you need real experts handling your sexual harassment training.
In the last 24 months, the law of training has gone through a major overhaul. For years, employers relied only on their best judgment to determine if homegrown discrimination and harassment training programs were good enough to stand up to scrutiny from the courts or the EEOC. It was virtually impossible to find case law or statutory guidance that really detailed specific training expectations. Today, employers across the country can look to California’s AB 1825. California was the first state to provide employers with real guidance about what constitutes effective EEO and harassment training. In essence, it has demanded robust legal content and excellent instructional design. Shaped by experts in the field of employment law and training (such as ELT and Littler Mendelson who assisted the state of California in drafting AB 1825’s regulations), the law sets national expectations. A good indication of AB 1825’s national impact? Recent EEOC consent decrees, which detail discrimination and harassment training mandates. Just last week, the EEOC settled a lawsuit against Hampton Inn (Hagerstown, MD). Similar to the Mother’s Work settlement from just a few weeks ago, it involved a pregnancy discrimination lawsuit. An employee sued Hampton Inn alleging that the hotel manager withdrew an offer of employment after realizing she was about four months pregnant. Hampton Inn settled for $45,000. In keeping with the California training trend, the consent decree mandates training for all employees -- two hours for managers and one hour for employees -- both to have a special focus on sex and pregnancy discrimination. The two hour requirement is not coincidental – it is the training length standard set by AB 1825. While many employers outside of California balk at 2 full hours dedicated to harassment prevention education, there is a clear trend of court and EEOC ordered training requiring lengthy programs. The big picture result? A domino effect in terms of the general expectation placed upon employers. I personally see more and more clients committing to the 2-hour training standard for supervisors outside of California. Aside from realizing that the AB 1825 standards are likely to impact them in the event of future litigation, there is also a commitment to providing a single, consistent training program across the organization. It is too cumbersome, and frankly, too risky, to provide a robust 2-hour program in California, and a “pared down” program in other states. How do you explain the difference to employees – or to a jury? As I continue to monitor EEOC consent decrees, jury verdicts, and legislative developments across the country, it is clear that the effects of California’s AB 1825 will be widespread. Sarah Reyes, author of California’s training law, has also commented repeatedly that legislators in several other states have contacted her for assistance in crafting similar laws. Employers located outside California should take a long and hard look at California’s training requirements. Even if these standards have yet to be adopted by your state, they are likely to impact your organization. Whether you receive a charge of discrimination, or are sued in court, it is highly likely that the AB 1825 standards will impact how your case is evaluated, and possibly resolved. Implementing an AB 1825 compliant program today will save your organization time and money in the long run.
Today, California’s Fair Employment & Housing Commission adopted final regulations for the state’s mandatory sexual harassment training law. The AB 1825 regs were voted in unanimously, and without any changes to the most recent October 2006 draft. So what happens next? The FEHC sends the final regulations to the Office of Administrative Law (OAL), the state “watch dog” for rule making. Basically, the OAL vets the FEHC’s work to ensure that the Commission drafted regulations that bear a logical relationship to the bill, and that the Commission appropriately considered public comments. The OAL has 30 days to evaluate the regs. Considering that the Commission went through four drafts and four intensive public comment periods, the OAL is unlikely to find problems with the regs and will send them to the Secretary of State’s office, where they have 30 days to become effective. What does that mean in terms of a likely effective date – meaning the date that all supervisor harassment training conducted by California employers must comply with the new regs? According to Ann Noel, Acting Executive Legal Affairs Secretary for the Commission, we can expect the regulations to be effective some time in February 2007. While she anticipates a “best case of early February,” if the OAL requests some final tweaks and changes to the regs, this could push the effective date out a few weeks. The practical impact? Get moving. Employers organizing their 2007 re-training efforts should plan on the AB 1825 regulations becoming effective within the next 90 days – which means purchasing or building training programs that comply with the new, stringent requirements in a relatively short period of time. On November 30, ELT and Littler Mendelson are hosting a complimentary webcast with the bill’s author, Sarah Reyes, to review the detailed requirements of the new regs, best practices for compliance, and the impact of AB 1825 on harassment training across the country. To register, click here. It has been a long journey, and I know we are all glad to see final regulations adopted. I look forward to connecting with many of you on November 30!
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.
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.
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, 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.
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.
The new AB 1825 draft regs are here – at long last. As many of you know, ELT helped to write the regs as part of the Blue Ribbon Advisory Committee to the FEHC. See a detailed summary of the latest AB 1825 regulations. So what are the highlights? For a quick synopsis, here is what really matters: - The regs are not final, but will likely undergo very little change before they are adopted. That means you need to pay close attention to the regs as you plan your 2007 training efforts.
- E-learning and webinars need to be highly interactive (questions, skill-building activities, hypotheticals), and include the ability for learners to submit questions. Questions must be responded to in no less than 2 business days.
- Your classroom trainer, or the developer of an online program, needs to be a true expert in harassment prevention. A generic training background is not enough, and a quick “primer” on harassment issues won’t prep someone for this role. Remember that in the event of litigation, these trainers and developers may be deposed or even spend time on the witness stand.
- Two hours of e-learning means a program that cannot be completed in less than 2 hours. Practically speaking, this means your training program needs: (1) a timer that requires learners who complete in less than 2 hours to view additional content until the 2 hour threshold is met, or (2) required media elements that cannot be completed in less than 2 hours.
- Training content can go beyond sexual harassment to include other protected categories, such as race and religion. Time spent on these other areas counts toward to the two-hour standard.
- Training records must be documented and kept for a minimum of 2 years.
- Training programs must cover the elements of an employer’s harassment policy and how to handle complaints.
- Retraining Must be Calendared Using Individual Tracking. Employers must track training for each supervisor measured two years from the date of the completion of the last training for that individual. The December 2005 regulations permitted "Training Year" tracking, which allowed employers to designate a "training year" in which to train supervisors. Under the old regulations, the employer could then retrain supervisors by the end of the next training year. The practical impact is that supervisors trained in early ’05 need to be trained in early ’07 versus the end of ’07. That moves the training deadline up for employers who started AB 1825 training efforts early in 2005.
If you would like to participate in the final public comment period, you have until July 20. For details on how to submit comments, go to the FEHC harassment regulations website. A final note of caution. In an effort to beef up their sales efforts, some training vendors claim to have “assisted” the FEHC in drafting the regs and as such, offer the “inside scoop” on the regulatory process. These are companies who are positioning their participation in the public AB 1825 hearings (anyone could attend and testify– see my previous posts from Feb ‘06) as equivalent to serving as the FEHC’s right hand in the regulatory process. It’s a stretch, to say the least. It’s also an interesting move for companies whose businesses are based on ethics and compliance.
Today, California’s Fair Employment and Housing Commission adopted long-awaited, revised draft regulations for AB 1825. The regs will undergo a few more tweaks and revisions as a follow up to today’s public meeting. They will likely be published in late June / early July 2006. Why should employers care about revised regulations that are still in draft form? Because further changes are very unlikely given the lengthy review and revision period that followed the first draft of the regs published in December of 2005. Employers planning for their 2007 retraining need to pay close attention to the regs, as they place more stringent standards on training programs, e-learning in particular. Once the regs are published, a detailed summary and analysis will be available for your review on this site.
According to the California Supreme Court, raunchy talk can sometimes be a necessary part of the job. The court’s unanimous ruling in Lyle today threw out sexual harassment claims made by a former writers' assistant on the NBC hit television show "Friends." View details of the |