California has become one of the first states to require employers to provide preventive training on “abusive conduct” in the workplace. “Abusive conduct” is a broader and vaguer standard than unlawful harassment. The new law, AB 2053, modifies the requirements of AB 1825, the now-familiar California law that mandates bi-annual, anti-harassment training for supervisors.
AB 1825 Training
To summarize, AB 1825 requires covered employers to provide two hours of interactive anti-harassment training to their California supervisors, every two years. The law applies to public employers, and private employers with 50 or more employees (even if they are not all in California). New supervisors must receive training within six months of hire or promotion, and then once every two years thereafter.
AB 1825 requires trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation. The training must include information and practical guidance regarding federal and state laws covering sexual harassment, as well as the remedies available to victims. The training must also provide helpful examples to assist supervisors in preventing unlawful harassment, discrimination, and retaliation.
AB 1825 training focusses on sexual harassment and other conduct that is unlawful under the Fair Employment and Housing Act (“FEHA”) and federal law. As of January 1, 2015, AB 2053 expands this training to include the prevention of “abusive conduct.”
The new law defines “abusive conduct” as “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.” The law explains that abusive conduct can include 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.” However, isolated acts of offensive conduct are not “abusive conduct,” unless such conduct is “especially severe and egregious.”
AB 2053 does not make “abusive conduct” illegal under the FEHA. Just like under its federal analog, Title VII of the Civil Rights Act of 1964, offensive conduct is not unlawful unless it is tethered to a protected status, such as race or sex.
Nest Stop: Anti-Bullying Legislation
The Legislature apparently intends AB 2053 to train managers that “abusive conduct” is not acceptable, even if it is not unlawful. AB 2053 was inspired by a national campaign to outlaw and penalize employers that permit abusive conduct and bullying in the workplace. Even though California did not enact the complete model bill, the Legislature’s passage of AB 2053 appears to be a first step to enacting an anti-bullying law.
AB 2053 May Benefit Employers
Proponents of the new law cite studies showing that workplace bullying may contribute to health problems for affected employees, including “anxiety, depression and other stress-related disorders and diseases.” Proponents argue abusive conduct can have a negative effect on productivity and morale, as well as increase absenteeism rates and employee turnover. If the training is effective, a workplace with less “abusive conduct” will be welcome by most everyone. If the studies are correct and the training is effective in reducing “abusive conduct,” lower turnover and improved employee health and morale will benefit both employers and employees.
Compliance with AB 2053
Failing to provide the newly expanded training carries risks. First, California’s Department of Fair Employment and Housing may order an employer to provide the training if it is not in compliance. Disobeying that order can lead to administrative or court proceedings.
Another incentive for compliance? Plaintiff-side lawyers will use noncompliance against employers in lawsuits. Incomplete or non-compliant training can be used as evidence to show that employers are uncaring or that they do not take anti-discrimination laws seriously. Such evidence can be used to drive up monetary awards or justify punitive damages.
Conversely, employers’ implementation of effective and legally satisfactory training helps demonstrate their commitment to providing a harassment-free workplace. It will also help ensure supervisors and managers are equipped to address workplace problems (i.e., prevent the lawsuit in the first place).
Employers must retain the required training records for a minimum of two years. These records must include the name of the supervisor trained, the date of the training, the type of training, and the name of the training provider. Many trainers and employers also provide certificates of completion, which can be kept in an employee’s personnel file. Employers should retain training materials to demonstrate that training given after January 1, 2015, complies with AB 2053.
Employers must now take steps to revise training materials to include the prevention of abusive conduct. Those employers that use third-party training, including online training, should ensure that their vendors are making the required modifications.
Employers also should consider updating workplace policies to address abusive conduct now. After all, few employers favor abusive conduct in the workplace, even if it is not illegal. That said, vague policies regarding conduct in the workplace can cause other problems, such as prohibiting conduct that is protected by the National Labor Relations Act. Working with experienced legal counsel can help employers avoid legal pitfalls and maximize policy effectiveness.