Earlier this year, Governor Newsom signed two amendments to SB 1343 extending the deadline to comply with California’s expansion of sexual harassment training requirements to January 1, 2021. This provided employers with another year to begin training their supervisory and non-supervisory employees and temporary/seasonal workforce.
See our previous analysis of SB 1343 and SB 778 here.
In early December 2019, California’s Department of Fair Employment and Housing (DFEH) updated its Employer Frequently Asked Questions (FAQ) guidance to reference this extension. The updated FAQ clarifies that the DFEH is to complete its version of free online training courses by "early 2020" (moved from "late 2019"). The online training courses should be instructive on the specific content required for the new one-hour nonsupervisory training, which is not defined by SB 1343.
California DFEH Harassment Training Compliance Tips
As employers prepare to comply with broadened sexual harassment training obligations, it is a good reminder to keep the following principles in mind:
Effective Interactive Training
Employers must provide "effective interactive training" that can include classroom training, computer-based training that is individualized and interactive, or a webinar training taught in real time. If an employer utilizes a webinar training for a large group of people, the employer must comply with the following documentation procedures:
- Demonstrate that each employee who was not physically present in the same room as a trainer attended the entire training and actively participated with the training’s interactive content;
- Provide an opportunity for all employees to ask questions and to have them answered during the webinar; and
- Maintain a copy of the webinar and all the written materials for a period of two years after the date of the webinar.
Every employer must display in a prominent and accessible location a poster developed by the DFEH regarding Transgender Rights and Sexual Harassment. (like the employee break room or near the time clock).
Employers are required to train employees within 30 calendar days of their hire date or 100 hours worked, whichever occurs first. Employers are not required to train employees employed for fewer than 30 calendar days and fewer than 100 hours. If a temporary employee is also employed by a temporary employment company, the temporary employment company must provide training for the temporary employee.
Independent Contractors/ Volunteers/Unpaid Interns and Non-California Employees
Employers do not need to train non-California employees, independent contractors, volunteers, or unpaid interns (although it may be recommended to do so). However, in determining whether an employer meets the threshold of having five (5) employees, these individuals are counted.
Employees Who Previously Received Training
If an employee has already received the training from a current, prior, alternate, or joint employer within the previous two years, the employee does not need to retake the training, but the current employer must ensure that the training was completed, which may require verifying compliance from the prior, alternate, or joint employer. The employer must give the new employee its anti-harassment policy and require the employee to read it and acknowledge receipt of it.
Employers should not view training as "set it and forget it" or a "check the box" for legal compliance purposes. While employers should satisfy the legal requirements, of course, employers are well-served to voluntarily train to set a culture that instills the standards of conduct of the workplace.
See our prior client advisories here and here about the benefits of a proactive approach and creating a robust training program.