The New California Regulations Part III Sexual Harassment and Abusive Conduct Training

The California Office of Administrative Law recently approved regulations drafted by the California Fair Employment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the Fair Employment and Housing Act (FEHA), will go into effect on April 1, 2016. 

In this blog series, we will highlight some of the most significant aspects of the regulations that clarify an employer’s obligations in the workplace. The first article in the series, Preventing and Correcting Wrongful Behavior, covered an employer’s obligation to take all reasonable steps to prevent and correct wrongful behavior in the workplace. The second article in the series, The Transgender Workforce, covered new regulations and guidance concerning an employer’s obligation and guidance regarding transgender employees. The third topic, which we will cover here, is new regulation concerning an employer’s obligation to train its staff to avoid conduct prohibited by the FEHA.

Additional Training Requirements

Employers with 50 or more employees are obligated to provide two hours of sexual harassment training to their supervisory staff every two years. The goal of this training is to change or modify behavior that contributes to sexual harassment, to assist supervisors in preventing and responding to sexual harassment, and to implement mechanisms to promptly address and correct wrongful behavior. The training must define unlawful sexual harassment as well as discuss the conduct that constitutes sexual harassment, remedies for sexual harassment, and strategies to prevent sexual harassment in the workplace.  While this training was always intended to be interactive, the new regulations include guidance to meet this requirement, such as using pre or post-training quizzes, small group discussions, or hypothetical fact scenarios.   

Abusive Conduct and Obligation to Report

While previous regulations only addressed sexual harassment training, recent changes have expanded these requirements. As of 2015, employers are now required to train supervisors on “abusive” conduct, which the FEHA defines as malicious workplace conduct that a “reasonable person would find hostile, offensive, and unrelated to the employer’s legitimate business interests.” The most recent amendments to the regulations also require employers to inform supervisors that they are obligated to report any harassment, discrimination, and retaliation of which they become aware. 

Expanded Recordkeeping Requirements

Before the new regulations, employers were required to maintain copies of certain materials in order to track compliance with this training requirement. For all trainings employers were previously required to maintain a list of the names of all trainees, the date of training, the type of training, and the name of the training provider. 

The new regulations require employers to keep even more training documentation for a specified period.  Now, employers are required to keep sign in sheets and certificates of attendance or completion.  Employers that use computer-based training must maintain copies of all questions submitted by employees in writing, as well as the responses. Employers that train employees via webinars must maintain a copy of the webinar, all written materials used by the trainer, and all written questions that employees submit during the webinar. Employers must also document all written responses or guidance trainers provide during a webinar.  Employers must now keep all of this documentation for a period of two years. 

Compliance Tips

California employers have been providing mandatory sexual harassment training for 10 years, but the new regulations impose new requirements that companies should fully understand. To ensure your training is compliant, design and execute your program with the following in mind:

• Train supervisors to prevent wrongful conduct. The new regulations require employers to cover mandatory substantive topics, including sexual harassment and abusive conduct, but proactive employers should take the opportunity to address ways to prevent and correct other types of wrongful workplace behavior. 
• Interact with the audience. Keep in mind the specific issues that your employees face and customize the training for your specific work environment. 
• Keep required records. Make sure not only to track attendance and compliance, but also to keep copies of the training materials, written questions, and responses. 

In advance of the April 1 effective date of these new detailed requirements on employers’ discrimination and harassment obligations, employers should start preparing now by revising their written policies and procedures to comply with the new regulations. Join our speaker Douglas J. Farmer (shareholder, San Francisco) for a timely webinar that will cover the essential information employers need to know about the new regulations, including how the rules have changed, what the rules mean for California employers, and the next steps to ensure that their policies comply. Register for “It’s Time for a Policy Checkup: New California Discrimination and Harassment Policy Requirements Take Effect April 1,” which will take place on Wednesday, March 30, 2016 at 11:00 a.m. Pacific, on our webinar page.

Part four of this series on the California Fair Employment and Housing Council’s new regulations will cover the regulations’ new guidance on the use of  “assistive” animals as a reasonable accommodation for a person with a disability.