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AB 1825 Overview
The new law, effective January 2005, requires employers with 50 or more employees to provide at least two hours of "classroom or other effective interactive training" to all supervisory employees on the prevention of sexual harassment, discrimination and retaliation.
Definition of Employer
An employer is any entity with 50 or more persons. Do employees outside California count? Yes; all employees "within or outside of the State of California should be counted." [DFEH Case Analysis Manual, Vol. II §17]
For counting purposes, you must count any person who is: Regularly employed: The definition of an employee is very broad for counting purposes. It includes full-time, part-time, and temporary employees, Regularly providing services: The services can be under contract or as an agent, whether directly or indirectly. This includes independent contractors and leased employees.
Irrespective of the number of employees, the State, any political or civil subdivision of the state, or any city is considered an employer under AB1825.
Definition of Supervisor
While AB1825 does not define "supervisor," it's broadly defined elsewhere in the FEHA: anyone who directs other employees, or has the authority (or significant influence) to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, adjust grievances, or discipline other employees. Must supervisors outside California receive AB 1825 training? Yes, if they supervise employees who are in California, they should be trained no matter where they're located. However, if they're out-of-state and do not supervise employees in California, they wouldn't be covered (still, it's a good idea to train all supervisors).
Compliance Dates
By January 1, 2006, you must train all supervisors employed as of July 1, 2005. If you already trained supervisors after January 2003, you need not train them by the January 2006 deadline, but the training must have met the requirements of AB 1825 defined below. After January 1, 2006, you must retrain each supervisor every two years. If you retrain supervisors over a two-year period, it probably would qualify so that you would not have to wait two years before training the supervisors.
New Hires or Promotions: if you hire supervisors or promote employees to supervisors anytime after July 1, 2005, you must train them within 6 months of their hire or promotion date.
Examples: if you hire or promote supervisors in November 2005, you must train them by May 2006 and retrain them within two years of the date you trained them. If you hire or promote supervisors in February 2006, you must train them by August 2006 and retrain them within two years of the date you trained them.
Training Requirements
You must provide at least 2 hours of training. AB1825 expressly states that it "establishes a minimum threshold and does NOT … relieve employers from providing longer, more frequent … training regarding harassment or other forms of discrimination to meet the employer's obligation [under FEHA] to take all reasonable steps necessary to prevent and correct harassment and discrimination."
Training Method:
In the "classroom" OR
By "other effective interactive training:" The new law does not define "interactive training." However, according to the California Department of Fair Employment and Housing (DFEH) and the Fair Employment and Housing Commission (FEHC), "interactive training" does NOT require a live instruction. It can be web-based training if the trainees can submit questions and receive answers via email.
Note: there are some lawyers and consultants who are saying that only live instructors (translated: lawyers/consultants) can provide the training. Apparently, they did not read the law or they're unaware of the DFEH and FEHC pronouncements that online training can qualify.
Trainer's Expertise: The trainers must have ‘knowledge and expertise in the prevention of harassment, discrimination and retaliation. The DFEH and FEHC further said that training need NOT be conducted by an attorney. If the expertise of the trainer is questioned in court, the trainer will have to prove it.
Course Content: the training must provide guidance regarding State and federal provisions that cover: type of conduct prohibited how to prevent and correct sexual harassment what remedies are available to victims of sexual harassment examples on the prevention of harassment, discrimination, and retaliation.
To Train or Not to Train
Employers who fail to train are not automatically liable in any action alleging sexual harassment. But, if an employee complains, the FEHD Commissioner "shall" issue an order that requires the employer to comply with AB 1825. And, if an employer complies with the new law, it does not insulate the employer from liability for sexual harassment of any current, former employee or applicant.
OTL's Note
There are good business reasons to train ALL employees, whether you have more or less than 50 employees:
Reduce Claims: Training can do more than deliver information. It can change behavior. And, changing behavior is the most cost-effective way to avoid the risk of claims. Some studies show a 40% reduction in claims. Affirmative Defense: in 1998, the US Supreme Court declared (EEOC agreed) that employers should "periodically" train employees. And, if they do train employees and an employee makes a claim, the employer may be able to avoid liability even if the alleged bad conduct occurred.
Avoidable Consequences: in 2003, California's Supreme Court adopted a slight variation of the "affirmative defense" for lawsuits brought under the state Fair Employment and Housing Act (FEHA). Under the FEHA, an employer is "strictly liable" for a harassing manager. However, a company may still avoid financial responsibility if it has effectively trained employees on its anti-harassment policy.
Avoid Punitive Damages: in 1999, the US Supreme Court (followed by California) stated that if employees win a claim for harassment or discrimination, employers will avoid punitive damages if they show a good faith effort to comply with the law (train employees). Policy statements and handbooks are not enough.
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