sexual harassment training

It is important for employers in California to make sure that their front-line managers dealing with employees on a day-to-day basis are knowledgeable about different employment issues that routinely come up in the employment context.  This week’s Friday’s Five covers five areas that employers should review with their managers to ensure they inform the appropriate executives about any potential issues in the workplace:

1. At-will employment

Under California law, it is presumed that all employment is terminable at-will. California Labor Code section 2922 provides: “An employment, having no specified term, may be terminated at the will of either party on notice to the other.” The at-will doctrine means that the employment relationship can be terminated by either party at any time, with or without cause, and with or without advanced notice. There are some major exceptions to this rule, but generally California law recognizes that employers and employees may, at any time, and for any legal reason, terminate the employment relationship.  Of course managers should consult with human resources or the appropriate executive before terminating an employee, but managers need to understand that they can terminate employees with or without cause and should be trained on the legal parameters of at-will employment.

2. Anti-harassment, discrimination and retaliation

California employers with 50 or more employees are required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.  All covered employers must provide sexual harassment training and education to each supervisory employee once every two years.  In 2015, California requires that a portion of the training also address “abusive conduct.”  More information about what topics must be covered in the training, who qualifies to provide the training, as well as other requirements about the training can be found here.

Managers should also be trained about the employer’s obligation to prevent sexual harassment in the workplace.

3. Timekeeping requirements

California law requires employers to track start and stop times for hourly, non-exempt employees. The law also requires employer to track the start and stop times for the employee’s thirty minute meal periods. The time system needs to be accurate, and the employer needs to be involved in the installation and setup of the system. Do not simply use the default settings for the hardware and software. Understand what the system is tracking and how it is recording the data. Since the statute of limitations for California wage and hour violations can extent back four years, it is recommended that employers take steps to keep these records at least four years.  Employers should also have a complaint procedure in place and regularly communicate the policy to employees in order to establish an effective way to remedy any issues.

4. Meal and rest break requirements

As I’ve written about many times previously, employers must have a compliant meal and rest break policy.  Indeed, given the California Supreme Court’s ruling in Augustus v. ABM Security Services in December 2016, employers should review their rest beak policy to ensure it complies with this ruling.

5. Responding to requests for records and legal notices

There are many different Labor Code provisions that obligate the employer to provide current and former employees with a copy of their personnel files and/or payroll records.  For example, Labor Code section 432 permits employees to obtain a copy of any document they signed, Labor Code section 1198.5 allows current and former employees to obtain copies of their personnel records, and Labor Code section 226(c) permits employees to inspect or copy payroll records within 21 days after making a request to do so.

Managers need to be trained to immediately inform management or Human Resources about any requests to obtain these records by current and former employees.  In addition, managers should be trained to immediately report receiving any legal notices, including the following:

Yesterday, September 30, 2018 was the last day for Governor Brown to sign or veto legislation passed by the California legislature this year.  Here is a list of the employment bills that were signed and will impact California employers in 2019 (the bills will become effective January 1, 2019, unless the bill specifies otherwise):

AB 3109 by Assemblymember Mark Stone (D-Scotts Valley) – Contracts: waiver of right of petition or free speech.  This bill makes unenforceable any provision in a contract or settlement agreement entered into on or after January 1, 2019, that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of the other party when the party has been required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.

SB 224 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Personal rights: civil liability and enforcement.  This bill adds “investor, elected official, lobbyist, director, and producer among those listed persons who may be liable to a plaintiff for sexual harassment” under Civil Code section 51.9 of who may be personally liable for sexual harassment.

SB 820 by Senator Connie Leyva (D-Chino) – Settlement agreements: confidentiality.  Prohibits provision in settlement agreements that prevents the disclosure of factual information relating to certain claims of sexual assault, harassment, or discrimination.

SB 826 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Corporations: boards of directors. Requires public companies who have principle executive offices in California to have a set number of women on the board of directors.  The Governor’s signing message can be found here.

SB 1252 by Senator Richard Pan (D-Sacramento) – Payroll records.  Existing law grants current and former employees of employers who are required to keep this information the right to inspect or copy records pertaining to their employment, upon reasonable request. Existing law requires an employer to respond to these requests within a specified time.  This bill provides that employees have the right to receive a copy of the employment records described above and apply the associated time requirements and penalty provisions in this context.

SB 1300 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unlawful employment practices: discrimination and harassment.  Prohibits an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.  The bill also provides that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.

SB 1343 by Senator Holly Mitchell (D-Los Angeles) – Employers: sexual harassment training: requirements.  This bill 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 one every 2 years thereafter.

SB 1412 by Senator Steven Bradford (D-Gardena) – Applicants for employment: criminal history.  The bill permits employers to conduct background checks for employees under certain narrow exceptions.


Governor Brown vetoed the following employment bills, which will not become effective:

AB 1867 – by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: sexual harassment: records. This bill would have required employers with 50 or more employees to retain records of sexual harassment complaints for at least five years.  The Governor’s veto message can be found here.

AB 1870 – by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: limitation of actions. This bill would have extended the statute of limitations for employment discrimination claims under California’s Fair Employment and Housing Act from one year to three years.  The Governor’s veto message can be found here.

AB 2079 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Janitorial workers: sexual violence and harassment prevention training. The Governor’s veto message can be found here.

AB 2732 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment: unfair immigration-related practices: janitorial workers: sexual violence and harassment prevention training. The Governor’s veto message can be found here.

AB 3080 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment discrimination: enforcement. The Governor’s veto message can be found here.  I previously wrote about this bill, and the potential effect it would have on employers in California here.

AB 3081 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment: sexual harassment. The bill would have created a rebuttable presumption of unlawful retaliation that any adverse employment action within 30 days for anyone that was a victim of sexual harassment.  The bill would have also created joint liability for employers who use contractor labor for any harassment supplied by that labor contractor.  The Governor’s veto message can be found here.

I’ll definitely be writing more about the new laws that will be taking effect.  Please subscribe to the blog (enter email in top right hand column) to receive email notifications when the blog is updated.

Another Friday – another Friday’s Five.  November 2017, a great time to have a refresher course on five obligations employers have under California law to prevent and correct any potential harassment and discrimination in the workplace:

1. Duty to prevent harassment

The Fair Employment and Housing Act (FEHA) requires employers to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.”  Gov. Code section 12940(k).  As part of this requirement, employers should have policies setting out a definition of sexual harassment, who employees should complain to regarding harassment, explain the types of discipline that may be used in harassment cases, that the complaint will be kept confidential to the extent possible, prohibit retaliation from employees who complain, and be distributed to employees with receipt acknowledged by the employee.

2. Duty to distribute California’s harassment pamphlet

California employers should develop a new hire packet.  One required document in this new hire packet is the California Department of Fair Employment and Housing’s information sheet.  It is required to be provided to employees “in a manner that ensure distribution to each employee.”  This requirement applies to all California employers, regardless of their size.

The DFEH provides the pamphlet (DFEH-185) online for employers to download here.

3. Duty to have written an anti- harassment, discrimination, and retaliation policy

Regulations issued by California’s Fair Employment and Housing Council took effect on April 1, 2016 set forth a requirement that employers adopt a written discrimination, harassment, and retaliation prevention policy that meet certain conditions.

The regulations provide that employers “have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act.”  The regulations set forth that in addition to providing employees the Department’s DFEH-185 brochure on sexual harassment, or an alternative writing that complies with Government Code section 12950, employers are required to develop a harassment, discrimination, and retaliation policy that meets certain requirements, including the employer’s complaint procedure, instruct supervisors to report any complaints, and confirm that the employer will conduct a fair and timely investigation, among other items.  Most notably, the new regulations require employers to obtain employees’ acknowledgment of receipt of the written policy.

4. Duty to train supervisors

California employers with 50 or more employees are required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.  All covered employers must provide sexual harassment training and education to each supervisory employee once every two years.  In 2015, California requires that a portion of the training also address “abusive conduct.”  More information about what topics must be covered in the training, who qualifies to provide the training, as well as other requirements about the training can be found here.

5. Duty to investigate complaints

California Government Code section 12940(j) provides that it is “unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”  The law also provides that employers are liable if they “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”  Gov. Code section 12940(k).  If the employer fails to take the preventative measures, they can be held liable for the harassment between co-workers.  If the harassment occurs by a manager, the company is strictly liable for the harassment.  If the harassment occurred by a non-management employee, the employer is only liable if it does not take immediate and appropriate corrective action to stop the harassment once it learns about the harassment.  Investigations must follow certain parameters in order to be deemed adequate under the law.  Click here for more information about conducting adequate investigations.

Employers in California with 50 or more workers must provide at least two hours of sexual harassment Seal_of_Californiaprevention training to all supervisors.  The requirements of what topics this training must include has changed since AB 1825 was passed requiring the training.  For example, AB 2053 required as of January 2015 “prevention of abusive conduct as a component of the training and education”, and in April 2016, California’s Fair Employment and Housing Council issued new regulations addition additional topics.

Employers issuing training to its employees must review the training to ensure that the training at least covers the following five topics:

1.      The law – California’s Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act of 1964.

  • A definition of unlawful sexual harassment under California and Title VII of the federal Civil Rights Act of 1964, other forms of harassment covered by the FEHA, and discuss how harassment of an employee can cover more than one basis.
  • FEHA and Title VII statutory provisions and case law concerning the prohibition against and the prevention of unlawful sexual harassment, discrimination and retaliation in employment.
  • The types of conduct that constitutes sexual harassment.

2.      Remedies

  • Remedies available for sexual harassment victims in civil actions, and potential employer and individual exposure and liability.

3.      How to prevent harassment

  • Strategies to prevent harassment in the workplace.
  • Supervisors’ obligation to report sexual harassment, discrimination and retaliation of which they become aware.
  • Practical examples, such as factual scenarios taken from case law, news and media accounts, hypotheticals based on workplace situations and other sources, which illustrate sexual harassment, discrimination, and retaliation using role playing, case studies, and group discussions.
  • The limited confidentiality of the complaint process.
  • Resources for victims of unlawful sexual harassment, such as to whom they should report any alleged sexual harassment.
  • In addition to discussing the strategies to prevent harassment, the training should also cover the steps necessary to take appropriate remedial measures to correct harassing behavior, which includes an employer’s obligation to conduct an effective workplace investigation of a harassment complaint.
  • Training on what to do if the supervisor is personally accused of harassment.

4.      Policies

  • The essential elements of an anti-harassment policy and how to utilize it if a harassment complaint is filed.  Either the employer’s policy or a sample policy shall be provided to the supervisors.  Regardless of whether the employer’s policy is used as part of the training, the employer shall give each supervisor a copy of its anti-harassment policy and require each supervisor to reach and to acknowledge receipt of that policy.

5.      Anti-Bullying

  • A review of the definition of abusive conduct (for more information on this aspect please read my article here).

Employers need to review their compliance with California’s sexual harassment training requirements on a periodic basis.  When doing so, it is a good time to update policies and remind employees about the company’s policies on a routine basis – not just when a complaint is made.  This Friday’s Five provides reminders about sexual harassment training and dealing with complaints in the workplace:

1.      Employers with 50 or more employees must provide sexual harassment training to all supervisors every two years.

Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.  From, all covered employers must provide sexual harassment training and education to each supervisory employee once every two years.  In 2015, California requires that a portion of the training also address “abusive conduct.”

2.      It is recommended that employers provide training to all employees.

All employees should be training about the company’s anti-harassment policy and seriousness of violations of the sexual harassment policy.  Rank and file employees should be encouraged to report any harassment or inappropriate conduct that they see occur in the workplace even though it may not be directed at them.  Encourage employees to help other employees to speak up and make the company aware of inappropriate conduct so that the company can take effective measures to stop the conduct.

3.      Employers should have a compliant policy and complaint procedure.

All employers should have an anti-harassment policy of their own developed and distributed to all employees.  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.

4.      Investigate all complaints.

Employers are liable for harassment when it knows or should have known that harassment has occurred.  Therefore, employers should take immediate and appropriate action when they become aware of any potential harassment taking place in their workplace.  An employer must take effective action to stop any further harassment and to minimize any effects of the harassment. The investigation should fully inform complainant of his/her rights.  In addition, the investigation must be immediate, thorough, objective and complete.  All witnesses and anyone with information on the matter should be interviewed.  A final determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appropriate, to all others who have a need to know.

If the investigation determines that harassment occurred, the company must take prompt and effective remedial action.  These steps would include taking appropriate action against the harasser, and keep the complainant informed of these steps.  In addition, the employer must take steps to prevent further harassment.

5.      Protect employees who complain against retaliation.

Employers must take steps to prevent retaliation against any employee who complains about harassment.  This even applies if the employer determines that the complaint was unfounded, the fact that a complaint was made is a protected activity.  Employers should remind the complainant of the anti-retaliation policy and have the employee report any perceived retaliation to the appropriate person in the company.  In addition, the employer should remind the person against who the complaint was made that there cannot be any retaliation against the complainant.  The employer may consider separating the two people involved in the situation to avoid any retaliation claims.

 

Happy New Year.  I started the Friday’s Five articles at the beginning of last summer, and the interest in the articles has been astounding, so I appreciate everyone who has read them and provided comments and feedback. If you have any topics you would like me to address, please let me know. With that said, here is a list of five resolutions for California employers in 2015:

1. Relax–make sure your employees are taking their meal and rest breaks.

2. Train – your supervisors to comply with California’s required sexual harassment prevention training for employers with 50 or more employees.

As of 2015 this training now must also discuss bullying in the workplace to be legally compliant.

3. Read – and update employment handbook policies on a yearly basis.

2015 has a few new laws that should be addressed the employee handbook and new hire packets.

4. Run. Sorry, no play on words with this one, you just need to get outside and run a bit.

5. Organize – and keep employment files, time records and wage information for at least the length of any applicable statute of limitations.

Employers should review their systems to ensure there is a process in place on how to organize and maintain employment information for the required time periods, it is required under the law and can help defend the company should litigation ensue.

Ok – one more bonus resolution:
Learn – more by attending my webinars on California employment laws to stay up to date.

In February, I will be presenting on what documents should be in new hire packets to employees. Date is still to be determined, but drop me an email if you are interested and I will forward you information as we set the date.

AB 2053 was signed into law by Governor Brown, and as of January 1, 2015, employers have to comply with new obligations regarding the sexual harassment training already required for some employers under California law.  Here are five issues employers should understand about AB 2053. 

1. What are employer’s current obligations to have supervisors attend sexual harassment prevention training before AB 2053 was passed?

In California, employers with 50 or more workers must provide at least two hours of sexual harassment prevention training to all supervisors. This training must be provided to supervisors within six months of the time they become a supervisor, and then at least once every two years. The training must cover federal and state statutory laws regarding prohibitions against sexual harassment, remedies available to victims, how to prevent and correct sexual harassment, discrimination, and retaliation. This requirement is set forth in California Government Code section 12950.1.

2. What new obligations does AB 2053 add to California’s sexual harassment training requirement?

AB 2053 amends Government Code section 12950.1, and takes effect January 1, 2015. The new law requires employers subject to the sexual harassment training requirement must continue with their obligations under Gov. Code section 12950.1, but to “also include prevention of abusive conduct as a component of the training and education….”

The law defines “abusive conduct” as follows:

For purposes of this section, “abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

Therefore, going forward, employers need to provide training that complies with this new requirement. Currently, there are no guidelines specifically setting forth details about how long the training should focus on this “abusive conduct” requirement. Employers are encouraged to take reasonable steps to implement a training that complies with this new requirement (I’m updating my training materials right now). Employers providing training by the end of 2014 should seek a training class that complies with the new requirements immediately.

3. Does it create a new cause of action for “abusive conduct” in the workplace?

No. While it may not good business practices, there is no law in California that makes workplace bullying or “abusive conduct” as defined in AB 2053 illegal. The policy reason behind not making such conduct illegal is that it would be difficult to determine what conduct is simply discipline, counseling, and day-to-day management actions versus actions taken with “malice” by a manager. Making such conduct actionable under the law would, in effect, make the court system the final decision maker in resolving normal day-to-day workplace disputes, which could stress the already overwhelmed court system.

4. If employers have already conducted sexual harassment training within the last few months, do they need to re-train their supervisors on January 1, 2015?

The law is unclear on this issue. I placed a call into Assemblywoman Lorena Gonzalez’ office, author of the bill, and was told by a spokesperson that the law would not require re-training of supervisors any sooner than when the two year deadline required them to receive their next training. However, employers should approach this issue with caution, as the law is not clear on the requirement regarding when supervisors must receive training compliant with this new requirement regarding “abusive conduct.” Also, if employers are conducting training of its supervisors between now and the end of 2014, it goes without saying that the training should cover this new requirement to avoid any issues.

5. Could this amendment eventually lead to a law making “abusive conduct” illegal?

Potentially. Even though there is no legal cause of action for “abusive conduct” as defined in the new law, this type of legislation could be amended to make this conduct illegal in the future.