Is Your Harassment Prevention Training in Compliance?
Under California law, employers with five (5) or more employees[i] must provide sexual harassment and abusive conduct prevention training for all their employees.[ii] Supervisory employees must complete two (2) hours of training and non-supervisory employees must complete one (1) hour. Training must take place within six (6) months of hiring, regardless of which group the newly hired employees are a part of.
As the law currently stands, once the initial training has been completed, employees must be retrained every two (2) years.
What Kind of Training is Required?
The law was updated and expanded in 2018[iii] to include sexual harassment as well as harassment based on gender identity, gender expression, and sexual orientation.
All trainings must be interactive, whether online or in-person, and must address the following issues in order to be compliant with California law (“compliance standards”):
How to identify behavior that may constitute unlawful harassment, discrimination, or retaliation under both California and federal law;
What steps to take when harassing behavior occurs in the workplace;
How to report harassment complaints;
Supervisory employees’ obligation to report harassing, discriminatory, or retaliatory behavior of which they become aware;
How to respond to a harassment complaint;
The employer’s obligation to conduct a workplace investigation of a harassment complaint;
What constitutes retaliation and how to prevent it;
Essential components of an anti-harassment policy; and
The effect of harassment on harassed employees, coworkers, harassers, and employers.
What is the Difference between Supervisory and Non-Supervisory?
The Department of Fair Employment and Housing (DFEH) defines a supervisor as “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”[iv]
Any employee that has the authority and independent judgment to make workplace decisions regarding another employee is considered to be a supervisor and must take the supervisory training. Any employee who does not have this authority, or whose authority is merely clerical (meaning, does not require any sort of analysis or use of judgment), would be considered non-supervisory.
How Do I Count Employees?
For the purpose of harassment prevention training, California law requires an employer to count all employees, volunteers, interns, and even independent contractors as employees. While an employer is not required to train interns, volunteers, or independent contractors, it may be a best practice to do so. At the very least, asking independent contractors (and even vendors) to show proof of completion or their own anti-harassment policies can go a long way to ensuring the workplace is as harassment-free as possible.
What Are an Employer’s Responsibilities?
The responsibility to ensure that all levels of employees, including business owners, have been trained falls to the employer. As such, it’s important to confirm whether employees have completed training and to maintain an active calendar of when retraining should be scheduled.
Employers need to keep concise records of all training. California law requires that documentation of completed training be kept for at least two (2) years, but a best practice may be to keep these records for as long as employee personnel records are maintained.
These harassment prevention training records should include:
Date of the training
Type of training (Supervisory or Non-Supervisory)
Copy of all written or recorded training materials
Name of the training provider
Sign-in Sheet (if used)
Certificate of Attendance/Completion (if offered)
If an employee has completed training at a previous employer, the new employer should have them hand in a copy of their completion certificate. Most, if not all, programs offer a certificate of completion with each employee’s name and the date the training was completed. New employers have the burden to prove that the previous training was (a) actually completed and (b) compliant with California law. If the new employer is unable to verify that the employee completed the training and/or that the previous program meets the compliance standards, it may be a best practice to retrain the employee rather than find out later that the new employer is out of compliance.
However, if the new employer can verify that an employee previously completed the training and that the program meets the compliance standards, then that employee must read and acknowledge receipt of the new employer’s anti-harassment policy within six (6) months of hiring. The employee then needs to be placed on a two (2) year schedule from the date of that previous training to be retrained.
What about Temporary or Seasonal Employees?
Temporary and seasonal employees must be trained within thirty (30) calendar days after their hire date or within one hundred (100) hours worked, whichever comes first. So, if an employee is hired for a position that will last longer than thirty calendar days (not business days or days worked) or more than one hundred hours, they should be scheduled to complete the appropriate harassment training for their employment level (supervisory or non-supervisory).
However, if a worker is hired that is an employee of a temporary services employer (“Temp Agency”), then the temporary services employer is responsible for providing the training.
How Do I Find a Training Program?
There are a plethora of training programs offered nowadays, especially online. If you are interested in a program, ask them for a demo so you can see how their training is set up and if they offer/whether you’ll receive a copy of your employees’ completion certificates. Also, make sure they meet all compliance standards required under California law.
The DFEH also offers free training for both supervisory and non-supervisory employees.[v] Both levels of trainings are offered in English, Spanish, Chinese, Korean, Tagalog, and Vietnamese. A word of caution: the program is quite finicky and if the employee closes out of the program without printing or downloading a copy of the certificate, there is no way to retrieve it. Instead, the employee would have to retake the training in order to be issued a certificate, hopefully before they closed the second training session!
Make sure all supervisory and non-supervisory employees have received harassment prevention training in the past two (2) years and set up reminders for when the next round should be scheduled.
Maintain concise documentation of all training and keep those records for at least two (2) years.
Review your anti-harassment policies and employee handbook to ensure they are up-to-date with California law and meet the compliance standards.
Need help? Have questions? Reach out!
[i] Employees outside of California are not required to be trained; however, those employees are included in the employee tally. So, if you have 1 employee in California and 5 employees in Nevada, you are required to provide training for your California employee since you have a total of 6 employees. [ii] Cal. Gov't. Code § 12950.1. [iii] Senate Bill No. 1343, https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1343. [iv] Cal. Gov't. Code § 12926(t). [v] DFEH Harassment Prevention Training, https://www.dfeh.ca.gov/shpt/.