On December 16, 2005, the Fair Employment & Housing Commission of the State of California issued proposed regulations on Harassment Training and Education. Section 192950.1 of California’s Government Code requires at least two hours of interactive harassment training by January 1, 2006 and every two years thereafter for all supervisors employed by an entity that conducts business in California and has at least fifty employees. The law applies regardless of where those employees are located.

Indeed, the supervisors themselves do not need to be physically located in California: if they supervise at least one California employee they must participate in a harassment training that complies with the state’s regulations. New supervisors must complete their training within six months of becoming a supervisor or the creation of the employer.

Employers have been voluntarily training their employees on sexual harassment and related issues for a number of years. However, California law now imposes specific requirements on such training.

What Type of Training is Required?

The training must be interactive and presented by trainers or educators with knowledge and expertness in the prevention of harassment, discrimination and retaliation. The interactive requirement may be met in a number of ways, including classroom training or audio, video, or computer instruction. If the training is not conducted in-person, supervisors must have the opportunity to gain feedback, ask questions and have them answered, and submit to testing that measures progress and knowledge acquisition.

To ensure that employees are "measurably engaged in the training," e-training and webinars must provide a feedback or participation component at least once every fifteen minutes. Sufficient trainers or educators include people with the legal education or practical experience in harassment training who have knowledge of the California laws that prohibit unlawful harassment.

What Content Must the Training Include?

The training must include, but is not limited to, the following:

• the definition of unlawful harassment under both state and federal laws
• a description of state and federal statutes and case law dealing with unlawful harassment in employment
• the types of conduct that constitute harassment
• available remedies
• strategies to prevent harassment in the workplace
• "practical examples," including role play, case studies and group discussions
• the confidentiality of the complaint process
• resources for victims of unlawful harassment and
• training on how to conduct an effective investigation of a harassment complaint, what to do if the supervisor is the person accused of harassment, and the contents of the employer’s anti-harassment policy.

When Do the New Requirements Take Effect and What Should Employers Do Now?

The Regulations will not become final and enforceable until the public has had the opportunity to comment and recommend changes. The public comment period is open until February 10, 2006. Regardless of any subsequent changes, employers who conduct business in California should review the state requirements on harassment training to confirm they are in compliance before January 1, 2006. Specifically, employers who currently provide sexual harassment training should evaluate whether their training is sufficient given this new criteria.

Arent Fox regularly assists clients in developing sexual harassment policies and training supervisors and employees to comply with federal and state employment laws. If you are interested in having your current program reviewed, or would like additional information about or assistance with drafting comments on the proposed regulations, please contact either of the Arent Fox attorneys indicated below.

Michael L. Stevens
202.857.6382
stevens.michael@arentfox.com