California employers have many different obligations to train employees on certain issues. The primary training obligation that applies to nearly every employer (with 5 or more employees) is to provide sexual harassment prevention training. However, as set forth below, different industries have different standards, and employers need to review the requirements that pertain to their industries and companies to ensure compliance.
This article is the fifth article in my series of articles of employment audits to start out 2019. Prior articles covered the hiring process, records retention practices, wage and hour considerations, and end of employment issues. This article provides five reminders about a few of the training obligations facing California employers:
1. Employers with 5 or more employees must provide sexual harassment prevention training to all employees (even nonsupervisory employees) by January 1, 2020.
SB 1343 is a bill that was passed in 2018 that requires employers with 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisors and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter.
The bill does require that the Department of Fair Employment and Housing (“DFEH”) is to develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplace and to post the courses on the DFEH’s website. The bill requires the DFEH to make existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the DFEH website. At this point the DFEH has not indicated when the training and materials will be available, but check back here throughout the year for updates.
2. Harassment prevention training must cover certain topics.
Employers issuing sexual harassment prevention training to its employees must review the training to ensure that the training covers the required topics. For example, some of the topics include:
- The law that applies, such as California’s Fair Employment and Housing Act (“FEHA”) and Title VII of the Civil Rights Act of 1964.
- Remedies available for sexual harassment victims in civil actions, and potential employer and individual exposure and liability.
- How to prevent harassment.
- The essential elements of an anti-harassment policy and how to utilize it if a harassment complaint is filed.
- Anti-Bullying – A review of the definition of abusive conduct (for more information on this aspect see my prior article here).
3. Talent agencies required sexual harassment training and educational materials.
AB 2338 requires talent agencies to provide educational materials about sexual harassment prevention, retaliation, and reporting to its artists. At a minimum, the materials shall include the information listed in the DFEH’s Form 185. Materials may be provided electronically, such as a website or other means. The bill also requires talent agencies to make available educational materials regarding nutrition and eating disorders available to adult artists within 90 days of agreeing to representation. Talent agencies must keep records for three years confirming it has made the required information available.
4. Hotel and motel operators must provide training on human trafficking awareness.
SB 970, passed in 2018, requires hotel and motel operators to provide at least 20 minutes of “interactive training and education” regarding human trafficking awareness to employees who are likely to interact or come into contact with victims of human trafficking.
The require training must take place by January 1, 2020 and must be provided to employees within six months of employment in such a covered position. Training is required once every two years thereafter.
Training is required for, but is not limited to, the following positions: “an employee who has reoccurring interactions with the public, including, but not limited to, an employee who works in a reception area, performs housekeeping duties, helps customers in moving their possessions, or drives customers.”
5. Employers need to develop an anti-harassment policy that includes a complaint procedure.
All employers should have an anti-harassment policy of their own developed and distributed to all employees. Employers are required to develop a harassment, discrimination, and retaliation prevention policy that meets the following requirements:
- Is in writing;
- Lists all current protected categories covered under the Act;
- Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act;
- Creates a complaint process to ensure that complaints receive:
- An employer’s designation of confidentiality, to the extent possible;
- A timely response;
- Impartial and timely investigations by qualified personnel;
- Documentation and tracking for reasonable progress;
- Appropriate options for remedial actions and resolutions; and
- Timely closures.
- Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
- Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
- A complaint hotline; and/or
- Access to an ombudsperson; and/or
- Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
- Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
- Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
- States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
- Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
- Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
In addition, employers are required to distribute the pamphlet, Sexual Harassment Is Forbidden by Law (DFEH-185), to all employees. Employers should also routinely discuss the sexual harassment policy with employees at meetings and remind them of the complaint procedures and document these additional steps. This additional training will show that the company is serious about preventing harassment and took affirmative steps to protect its employees.