K&LNG
DECEMBER 2005
Alert
California Employment Law
State Agency Issues Proposed Regulations on Sexual
Harassment Training Requirements
In 2004, the California State Legislature passed a law
that required all employers with 50 or more
employees to train supervisors and managers on
effective sexual harassment prevention before the end
of 2005. The law applies if an employer has any
employees in California, so long as the employer has
50 or more employees nationwide. “Employees”
under this law is defined to include full-time, parttime and temporary employees as well as contract
workers performing services for the employer. These
and other details concerning the law were set forth in
K&LNG’s March 2005 Client Alert.
On December 16, 2005, the California Fair
Employment and Housing Commission (FEHC),
which is charged with drafting the agency rules to
govern administrative enforcement of the new law,
issued proposed regulations. These proposed
regulations are subject to revision after a 45-day
public comment period.
The proposed regulations make clear that supervisors
and managers who do not even work or reside in
California must receive training if they have
responsibility for supervising or managing any
California employee. They also clarify certain
requirements of the training law, including the
qualifications that trainers must possess and the
content of the training.
WHO MUST RECEIVE THE TRAINING?
Those who must receive training according to the
proposed regulations include any supervisor or
manager who has responsibility for hiring,
transferring, suspending, laying off, recalling,
promoting, discharging, assigning, rewarding, or
disciplining other employees, or the responsibility to
direct them, or to adjust their grievances, or to
effectively recommend any of the foregoing actions
based on independent judgment. The proposed
regulations make clear that the supervisor need not
reside or work in California to be encompassed by
the training requirement. The supervisor or manager
must merely have supervisory authority over one or
more employees, temporary workers, or contract
workers providing services in this state.
WHO IS QUALIFIED TO GIVE THE TRAINING?
Qualified trainers include California licensed
attorneys, human resource professionals,
psychologists, and others who have legal education
or practical experience in harassment training and
knowledge of California’s sexual harassment laws.
Desirable qualities for a trainer under the law, at least
according to the proposed regulations, are persons
who can:
■
use various training methodologies
■
facilitate large and small group discussions
■
is an effective listener
■
■
has a credible, positive professional
reputation
continues to learn about gender and cultural
issues and concerns
WHO IS NOT QUALIFIED TO GIVE THE TRAINING?
The proposed regulations state that undesirable
qualifications for a trainer include any person who
has a reputation (in the workplace or instructional
environment) for being:
■
a “hugger”
■
sexual
■
flirtatious
■
aggressive
Kirkpatrick & Lockhart Nicholson Graham LLP |
DECEMBER 2005
■
arrogant
■
abusive
■
demeaning to women or men
■
telling offensive jokes
■
using sexual, racial, religious, sexual
orientation, or other protected bases,
stereotypes or derogatory language
WHAT SHOULD THE TRAINING COVER?
The content of the training is also specified in the
proposed regulations. The training must include the
following:
■
■
■
■
■
■
■
■
definition of sexual harassment under state
and federal law
specific discussion of state and federal
statutory provisions and relevant case law
types of conduct which qualify as
harassment, remedies for harassment, and
strategies to prevent harassment, which
should also include practical examples and
hypotheticals
discussion of tools available in the
workplace to address harassment, including
explanation of the complaint process,
instruction on the investigation process and
confidentiality thereof, resources available
for victims, and identification of individuals
within the workplace who receive
complaints and can provide guidance and
information
definition and prohibition of retaliation
guidance as to what a supervisor should do
if he/she is accused
details of the specific employer’s sexual
harassment policy
measuring attendees’ acquisition of
knowledge from the training (through
discussion of hypotheticals, testing, or
problem solving exercises)
The training must last 2 hours. It doesn’t have to be
2 consecutive hours, but must be provided in
increments of no less than 30 minutes. Webinars and
e-training are acceptable, as long as there are
feedback and participation components at least every
15 minutes to ensure the employee has actually been
engaged in the activity.
EFFECT OF THE PROPOSED REGULATIONS
Employers who conducted training during 2005
which “substantially complied” with the proposed
regulations will be deemed to have complied with the
new regulations as well, even though the training
may not have incorporated each and every item
outlined in the proposed guidelines.
Although the proposed regulations are not binding or
enforceable, they do afford insight into the agency’s
view of the scope and intent of the sexual harassment
training statute in California. Until regulations are
finalized, employers should consider the agency’s
apparent intent to reach beyond California’s borders.
Employers may wish to extend training to
supervisors and managers in other states who have
responsibility for supervising California personnel. It
is also advisable to review and revise harassment
training efforts to ensure that programs are sufficient
in length and scope and that trainers possess the
requisite knowledge, skills, practical experience –
and possibly even personal characteristics – to provide
training that comports with proposed regulations.
When final regulations are issued, we will provide
you with an update.
For further information about sexual harassment
training from our California employment lawyers,
please contact Linda L. Usoz at lusoz@klng.com or
Jon Cohen at jcohen@klng.com in Northern
California and Thomas Petrides at
tpetrides@klng.com or Paul Sweeney at
psweeney@klng.com in Southern California.
Linda L. Usoz
lusoz@klng.com
650.798.6702
2
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LLP
| DECEMBER 2005
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Kirkpatrick & Lockhart Nicholson Graham
LLP
|
DECEMBER 2005