For the last several years, California employers with 50 or more employees or contractors have been required to provide its supervisors with at least two hours of sexual harassment training at least every two years. In July, the California Fair Employment and Housing Commission issued a new regulation describing more specific requirements for this sexual harassment training process. Here is a brief and basic overview, and some practical advice on ways to reduce employer liability and enhance employee morale.
Who must receive training?
All "supervisory employees" working in California must receive sexual harassment training. A supervisor is broadly defined by law as any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees. Contract employees who meet this definition must also be included in a training program.
What training options are there?
Classroom training: In-person instruction provided by a "trainer," who can train supervisors to identify and prevent harassment, discrimination and retaliation under California and federal laws. Certain individuals, such as attorneys, human resources professionals or consultants, and law school professors or instructors may automatically qualify as a trainer if they meet the regulation standards.
E-learning: Individualized, interactive, computer-based training created by a trainer and an instructional designer. The program must include a link or directions for how to contact a trainer, who will answer questions within two business days after the question is asked.
Webinar: An Internet-based seminar with content created and taught by a trainer and transmitted over the Internet or intranet in real time. Special documentation requirements exist for employees participating at remote locations. The webinar program must provide supervisors an opportunity to ask questions, have questions answered and otherwise seek guidance and assistance.
Which training mode should be used?
When considering the program that is right for your organization, weigh the respective advantages and disadvantages for each of the three training modes. Different modes of training can be selected for different groups of supervisors, depending on factors such as industry type, work experience and sophistication level of supervisors, etc.
Classroom-style training offers the best overall opportunity for effective training. First, because the trainer is physically present in the room, participants are more likely to stay engaged and less likely to check their blackberry or complete work projects, as sometimes occurs during webinar or e-training programs. Second, an engaging and personable trainer can keep the two-hour training session from becoming a sometimes dull and laborious process. Finally, the trainer's ability to be flexible and adjust to an audience's unique experience and concerns can result in a highly effective program where participants feel energized and confident about identifying and addressing incidents of harassment and discrimination in their workplace.
Webinar or e-learning modes of training may be a less-expensive choice for employers, depending upon the number of supervisors and their locations throughout the state. Both computer-based training modules potentially offer supervisors greater flexibility to fit the two hours of training into their busy work schedules.
Other training tips
Since "front-line" employees are in the best position to identify potentially problematic conduct, err on the side of being overly inclusive in selecting participants for sexual harassment training. The new regulation from the California Department of Fair Housing and Employment makes it clear that including such individuals in the sexual harassment training does not create an inference that the individual is an employee or a supervisor.
Ensure that any "canned" or "generic" training program incorporates the company's policy against harassment, as well as its corporate philosophy.
Have a human resources professional or employment counsel available during the program to answer questions regarding the company's specific policies and philosophies, to meet individually with employees who are not comfortable asking questions or surfacing issues in a group setting, and to provide follow-up or other support as necessary.
Discuss the issue of personal liability for supervisors who personally engage in sexual harassment, and the lack of defense or indemnification benefits as a consequence.
Include a training requirement in all independent contractor agreements.
This sexual harassment training requirement should be viewed as an opportunity, not a burden. Employees often leave these training sessions with a renewed sense of positive morale and a strong commitment to identify and eradicate the debilitating effects of discrimination and harassment in the workplace. Always contact your human resources department or attorney to help identify the best training option for your company and regularly ensure compliance with changing regulations.
Goodfellow is a partner with law firm Foley & Lardner LLP. She regularly represents clients in labor and employment matters such as wage and hour compliance, sexual harassment prevention and training, and labor relations.