Start 2019 On the Right Foot: Revamp Sexual Harassment Training Handbooks

After an eventful legislative year at the California State Capitol, employers must now comply with new sexual harassment training requirements that went into effect on January 1, 2019. Pursuant to these changes, a larger pool of employers must now provide updated sexual harassment training, which includes new material. Employers should ensure compliance by revamping their sexual harassment training handbook(s). This article will outline the changes that need to be made in order to ensure compliance in 2019.

Who Must Provide Sexual Harassment Training?

Every employer who was previously required to provide training is still required to provide training.

Senate Bill 1343 expands training requirements to now include employers with five (5) or more employees. For purposes of this section, the term “employer” encompasses “any person regularly employing five or more persons or regularly receiving the services of five or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.”  The five employees (or contractors) are not required to work at the same location, and are not required to all reside in California.

Previously, employers with fifty (50) or more employees were required to provide their supervisors with sexual harassment training. These employers are now required to provide training to their non-managerial employees, in addition to supervisors.

The new law acknowledges the fact that small businesses are not immune to sexual harassment. The requirement that only employers with five (5) or more employees provide this training is meant to strike a healthy balance between protecting employees and ensuring that an undue burden is not placed on employers.

Because the training must be provided by the employer, employees may not be required to receive the training during their personal time. The training must occur as a part of the individual’s employment, and employees must be paid during the time that they receive the mandatory training. 

Who Must Receive Sexual Harassment Training?

Employers must provide training to all employees, but the length of the training depends on whether or not the employee has a supervisory role. Employees who are in a managerial position must receive a minimum of two (2) hours of training from their employers by the State’s deadline. All other employees must receive a minimum of one (1) hour of training from their employers. This requirement applies to full-time, part-time, and temporary employees.

Seasonal and temporary employees who are hired only to work less than six (6) months will also need to receive sexual harassment training. However, their specialized requirement does not become effective until January 1, 2020. Once that day comes, this specific group of employees will be required to receive training within thirty (30) calendar days of hire or within the first one-hundred (100) hours worked, whichever comes first. Until then, non-managerial seasonal and temporary employees must still receive the mandated one (1) hour of training.

When do Sexual Harassment Trainings Need to be Completed?

Employees must be trained within six (6) months of their first day of employment. The training must take place beginning January 1, 2019 and must be completed by January 1, 2020. The training must occur once every two (2) years thereafter. Thus, all employees must be trained again by January 1, 2022.

If employers provided their employees with sexual harassment training in 2018, they are still required to provide additional training in 2019, since the new law went into effect on January 1, 2019. If you are an employer who voluntarily provided harassment training to your supervisory and non-supervisory employees in 2018, you must still retrain all of your employees in the 2019 calendar year in order to ensure compliance.

What Should the Sexual Harassment Training Include?

Senate Bill 1343 requires that the Department of Fair Employment and Housing (DFEH) develop and post training materials for employers to utilize for the required sexual harassment training. DFEH has not yet posted the training materials that may be used by employers, and it is unknown when the materials will be posted. It is likely that the training materials will not be released until late 2019. Employers are not required to use the materials that DFEH will eventually post. Employers may receive training materials from outside sources, so long as the materials satisfy the State’s criteria.

At the present time, DFEH offers a sexual harassment and abusive conduct prevention toolkit, which may be used in conjunction with an eligible trainer. A qualified trainer includes attorneys who have been “admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.”

The objectives and content of the previously mandated trainings are outlined in Title 2 of the California Code of Regulation, Section 11024, subsection (c). The overall objective of that training was to assist employees in creating a workplace that is free of sexual harassment, provide information on the negative effects of abusive conduct, and equip supervisory employees with the tools to prevent and effectively respond to wrongful behavior. The new training will likely be composed of the same objective and content; however, that information has not yet been released. 

The essential components of proper training would include definitions of sexual harassment and abusive conduct, remedies for sexual harassment or abusive conduct, strategies to help prevent sexual harassment, and practical examples to help demonstrate ways to identify and prevent wrongful behaviors. The information provided should comply with both state and federal law.

What Happens If an Employer Does Not Train Its Employees?

Employees have the ability to file complaints with DFEH. If DFEH receives complaints from employees after January 1, 2020 regarding their employer’s failure to comply with the new training requirements, DFEH will look into the matter. If DFEH finds that the employer violated the law, they will work with the employer to obtain compliance.

Beyond Sexual Harassment: Future Human Trafficking Training

Although the January 1, 2021 deadline is a couple years away, it is important to remember the new requirement imposed by AB 2034. All employers will have to provide at least 20 minutes of training on human trafficking awareness to employees who are likely to come into contact with human trafficking victims. This includes, but is not limited to, employees of light rails, bus facilities, or intercity rails. [Was There a Previous Requirement?]

Similarly, employers of motels and hotels are now required by FEHA to provide at least 20 minutes of training on human trafficking awareness to employees who are likely to come into contact with victims of human trafficking by January 1, 2020. Employers of motels and hotels will have a more expeditious deadline to comply with this new law since they were previously required to provide trainings to their employees.

Has Your Sexual Harassment Training Handbook Been Updated?

Although only a minimum of one to two (1-2) hours of sexual harassment training will need to be provided to employees every two (2) years, ensuring that your employees receive exceptional training is essential to protecting the integrity of your company’s workplace and reputation.

If you are an employer who has been affected by these new changes and would like an attorney to assist you with updating or developing a sexual harassment training handbook, the attorneys at Palmer Kazanjian Wohl Hodson LLP specialize in employment law and can customize a handbook that comports with state and federal law.