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Sexual harassment training -- What to do now

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If company managers did not receive sexual harassment prevention training by Jan. 1, 2006, the company could face a risk of increased damages if found liable in a harassment lawsuit.

Hunsaker

It's not too late, however, to take measures to minimize legal risks by acting quickly and properly.

If you have already conducted sexual harassment prevention training in your work place, congratulations. You belong to what may be a minority of California businesses that are in compliance with the new law.

On the other hand, are you sure that your trainer was legally qualified and that your training offered the key components specifically called for in the law? If not, your training may not have been compliant.

Whether your company did not meet the training deadline or conducted training that did not meet the standards under the new law, now is the time to act to prevent enhanced liability.

In September 2004, Governor Schwarzenegger signed Assembly Bill 1825 requiring mandatory sexual harassment prevention training for companies with 50 or more employees, including contract and temporary employees.

Every supervisory employee must receive two hours of interactive training every two years. All managers hired or promoted by July 1, 2005 must have received two hours of training by Jan. 1, 2006. Supervisory employees hired or promoted after July 1, 2005 are required to undergo two hours of training within six months of their hiring or promotion.

Many lawmakers (and lawyers, for that matter) believe education is critical to reducing sexual harassment in the workplace and to ensuring that harassment claims are promptly investigated.

At the time the bill was being discussed, 25 percent of complaints investigated by the Department of Fair Employment and Housing were sexual harassment complaints. The new law was intended to significantly decrease that percentage, through the use of proper, qualified training.

Under the new law, training must include specific elements:

* It must be interactive -- a video alone isn't enough;

* The content must be informational and include practical guidance; and

* The trainer must have knowledge and expertise in the prevention of harassment, discrimination and retaliation.

The content must include these specific discussion points:

* Federal and state laws regarding the prohibition against and prevention of sexual harassment;

* Information about the correction of sexual harassment and the remedies available to victims of sexual harassment; and

* Practical examples that instruct supervisors regarding the prevention of harassment, discrimination and retaliation.

While training not conducted in this manner and/or without this specific information might be beneficial, a company that doesn't specifically comply by holding a qualified training is still at risk.

Under the law, there is no automatic liability if the training does not meet the standards and/or if employees are not trained.

However, failure to train a particular individual who is later accused of sexual harassment or who fails to properly respond to a sexual harassment issue puts your company at greater risk if it is sued for sexual harassment.

Employers who fail to comply with the training requirements could be subject to an order issued by the Fair Employment & Housing Commission requiring compliance.

Following the law will not shield your company from sexual harassment lawsuits, but it may minimize your company's exposure in the event of liability.

Even if your company has fewer than 50 employees (including temps and contractors), you should seriously consider conducting training that meets the standards set forth in the new law.

As an employer you are still required to take "all reasonable steps" to prevent sexual harassment in your workplace, and training is considered a "reasonable step." AB 1825 ordered new statutory requirements for training, which have the potential to become the new standards for all training.

Being late in meeting the training requirements is better than not training your employees at all. If your company is not in compliance with AB 1825, the time to act is now.

Determine which employees must be trained. The law calls for all supervisory employees to receive training. Supervisory employees are those on your staff that have the authority to hire, fire, discipline and direct other employees.

Contract with a qualified trainer. The new law requires that the trainer must have "knowledge and expertise in the prevention of harassment, discrimination and retaliation." Lawyers and human resources consultants are most likely to have this expertise. You can use your internal human resources staff to conduct training as long as the trainer meets the requirements.

Schedule training for all necessary employees the earliest possible date available. Even though you have six months from the date of hire to train employees hired after July 1, 2005, you should consider training all supervisory employees now. You must provide your employees two hours of training. However, it need not be two continuous hours. You can break the training up into two (or more) sessions. If your company has passed the deadline, its employees should complete the full two hours as soon as possible.

Keep specific records of who attended and when they will be required to take training again. Under the law, each supervisory employee must have two hours of training every two years. Also, new hires must be trained within six months of their hire date so be sure that all new employees receive training within that timeframe.

The law sets the minimum standards for training. Keep in mind that you can train more extensively and more often. It definitely won't hurt to provide your employees with an expanded curriculum. You might also consider training nonsupervisory employees and/or provide training on other discrimination issues such as age, race, sexual orientation, religion and disability.


Hunsaker heads Fish & Richardson's California Employment & Labor Law Group and is the managing principal of the firm's San Diego office.

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