This fall, the California legislature responded to the #MeToo movement in a significant way. One bill, SB 1343, affects nearly every employer in California. Prior to SB 1343, only employers with 50 or more employees were required to provide sexual harassment and abusive conduct prevention training to supervisory employees every two years (commonly referred to as “AB 1825 training”). The new law extends the AB 1825 training requirement to employers with five or more employees. Additionally, covered employers must train all employees, not just supervisors, by January 1, 2020. The minimum training requirement for nonsupervisory employees is one hour; the two-hour minimum training requirement for supervisors and managers remains unchanged.
The California Department of Fair Employment and Housing (“DFEH”) recently announced that SB 1343 requires employers to train (or re-train) all employees by January 1, 2020. Therefore, employees trained in 2018 must be retrained in 2019. The law requires the DFEH to develop online training courses and make the courses available on its website. However, the DFEH does not expect to have such trainings available until late 2019. In the interim, the DFEH is offering on its website a sample slideshow-style presentation that employers may use.
DFEH regulations specify what training methods are acceptable, criteria for qualified trainers, and required content for the mandatory training. (See California Code of Regulations section 11024.) However, it is not sufficient to provide the bare minimum that the law requires. Employee training programs that are well-designed, engaging, and tailored to the workplace improve employees’ morale and confidence, which makes employees more productive. Ineffective training actually may be counter-productive, and have a negative effect on the workplace.
It may be tempting to provide computer-based or online training to check the requirement off your “to do” list. However, “live,” in-person training, with a competent trainer, is almost always more effective. Online training does not demonstrate the employer’s commitment to preventing harassment and abusive conduct in the workplace (which may become important when faced with a lawsuit alleging failure to prevent discrimination, harassment or retaliation). Additionally, AB 1825 requires employers who provide online training to ensure participants have access to a qualified trainer who can answer questions and provide guidance and assistance.
AB 1825 and SB 1343 and DFEH regulations include specific criteria for “qualified” trainers. Individuals qualified to provide the mandatory training must be attorneys who practice employment law and have been admitted to the bar for two or more years, or human resource professionals who have two or more years of experience designing training or responding to, investigating, or advising employers regarding sexual harassment issues. Professors who teach employment law also qualify. Trainers should be knowledgeable and experienced with discrimination, harassment, retaliation, and abusive conduct issues.
Internal training involves the employer’s available resources to develop and deliver training. In-house training is more cost-effective for those organizations employing a qualified trainer and enough space available to conduct the training. Creating and delivering a legally compliant training program may consume considerable time and should include legal review.
Although external training nominally may be more expensive, there are reasons employers make the investment. Good trainers are skilled at communicating with live audiences, explaining legal concepts, holding employees’ attention, and fielding their questions. Trainers experienced with a variety of businesses, and employees can share the benefit of that experience. Additionally, competent and experienced employment lawyers will be current on all of the content requirements for AB 1825/SB 1343 training. For example, the training must include “practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.” (See Government Code section 12950.1.)
Many law firms offer sexual harassment and abusive conduct prevention training. How does one select an external vendor that has the right combination of experience, technique, and commitment to training to provide a positive and effective training program for your organization? Look at the firm’s website to see if training is a primary practice area. Experienced employment lawyers who include training as a primary practice area will better connect with both supervisors and nonsupervisory employees. Find out if the firm provides off-the-shelf training, or customizes the training based on your workplace and your organization’s needs and goals. Check whether the law firm’s trainers spend most of their time training, or handling lawsuits. Ask the firm for references or copies of recent attendee evaluations to ensure their trainers have a reputation for being engaging. For example, do they use humor and storytelling in their program? Find out what the firm does to make the training interactive. Do they use scenarios or case studies to make training more fun and provide a safe environment for employees to practice using what they learned?
Whether an employer develops internal training or purchases external training, the environment for the training should be conducive to learning. The venue should be conducive to interaction with the trainer and other employees. The handouts or presentation should be accessible and visible.