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Publications
FAQs Concerning Continued Compliance With California Mandatory Sexual Harassment Prevention Training
Construction Practices Newsletter
Summer 2009
California Government Code section 12950.1 requires California employers with 50 or more employees to provide harassment avoidance training to supervisors every two years. Employers that do not conduct the training face increased risks of liability in civil cases and the possibility of fines and penalties assessed by the state government. The California Department of Fair Employment and Housing generally requests proof of the training when investigating harassment and discrimination charges. Additionally, having such documentation on hand is useful to an employer defending against harassment and discrimination claims.
Below are answers to frequently asked questions about this law, its continuing requirements, and its potential application to your company.
Frequently Asked Questions:
1. Does This Law Apply to Your Company?
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The statute applies to California employers that have 50 or more employees. Temporary workers (for example, a temporary employee from a staffing agency) and independent contractors who regularly perform services are also considered "employees" when calculating the 50 employees.
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The statute makes no distinction between California employees and out-of-state employees when calculating the 50 employees.
2. What Type of Training Must an Employer Conduct?
Training must comprise at least two hours of "classroom or other effective interactive training and education," including "practical examples" regarding:
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The legal prohibitions against sexual harassment under federal and state law;
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Prevention of sexual harassment;
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Correction of situations involving sexual harassment; and
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Remedies for victims of sexual harassment.
The regulations under the statute set forth in greater detail the required contents of the mandated training.
The regulations further provide that certain classroom, e learning, and webinar training qualifies as effective interactive training. However, video and handbook type training alone does not qualify.
3. Who Should Conduct the Training?
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The person who conducts the training must have "knowledge and expertise" in the prevention of harassment, discrimination and retaliation.
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It is the employer's obligation to ensure that the trainer is qualified and meets the criteria set forth in the regulations.
4. Who Must Receive Training?
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An employer must train all supervisory employees located in California.
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California law broadly defines "supervisory" employee to include not only individuals who have the authority to hire, fire, promote, discipline, reward and direct employees, but also those who act as "working leads." The law merely recommends the above-listed personnel actions. Therefore, the determinative factor is whether the employee has any ability to control, either directly or indirectly, a co-worker's employment.
5. When Must Employers Provide Training?
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Employers must provide sexual harassment training to each supervisory employee once every two years.
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Employers must provide sexual harassment training to each new supervisory employee within six months of the employee becoming a supervisor by hire or promotion.
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Employers must keep documentation of the training for at least two years that includes names of supervisors trained and other data set forth in the regulations. The regulations provide that management must track each supervisor's training using an individual or training year tracking method.
6. What Happens If Management Fails to Provide the Training?
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If an employer does not provide the training, the California Fair Employment and Housing Commission may issue an order mandating compliance.
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As a practical matter, a company that does not train its supervisors is foregoing the opportunity to minimize its potential liability if ever sued for sexual harassment.
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Although, under California law, conducting the training in accordance with the statute will not serve as a complete defense to a harassment claim, California courts have ruled that a judge and jury should consider such preventative measures when determining the amount of the employer's liability.
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Conversely, an employer's failure to comply with the law could, in effect, increase its liability and result in a more significant damages award against the business.
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