The California Chamber of Commerce is reminding employers with 50 or more employees that the mandatory supervisor sexual harassment training that must occur every two years may be due before the end of 2011. The deadline for many companies probably falls at the end of this calendar year, given that the original requirement went into effect in 2005.

AB 1825, signed in 2004, requires California employers with 50 or more total employees (including temporary service employees, independent contractors and employees outside the state) to provide newly hired or promoted supervisors working in California with two hours of classroom or other interactive sexual harassment training within six months of assuming a supervisor position.

Who Must be Trained

Employers must provide training to all employees who have supervisory authority, which generally includes anyone who has independent authority to:

• Hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees;

• Direct the work of other employees; and/or

• Resolve employee conflicts.

Employees who make recommendations to managers about such matters also must receive training if their recommendations are likely to be acted upon.

Training Must Be Interactive

California law also requires that the training be interactive. This means that video training alone is likely insufficient without discussion, role-playing, a question-and-answer session, or other similar techniques led by a qualified trainer. Businesses that do not complete the training are subject to a corrective order from the state Department of Fair Employment and Housing as well as increased exposure to harassment claims, lawsuits and liability.

Training and Tracking Compliance

Specifically, if a company started training supervisors and managers in 2005, it must have updated that training in 2007 and 2009. This also means that 2011 is time for another update. Employers can choose either of the following methods or a combination of the two methods to track compliance:

1. Individual Tracking: An employer may track its training requirement for each supervisory employee, measured two years from the date of completion of the last training of the individual supervisor. For example, a supervisor trained February 15, 2009 must be trained by February 14, 2011.
2. Training Year Tracking: An employer may designate a “training year” in which it trains some or all of its supervisory employees and thereafter must again retrain these supervisors by the end of the next “training year,” two years later. For example, a supervisor trained February 15, 2009 must be trained by the end of 2011.

If newly hired or promoted supervisors receive training within six months of assuming their supervisory positions and that training falls in a different training year, the employer may include them in the next group training year, even if that occurs sooner than two years. An employer shall not extend the training year for the new supervisors beyond the initial two-year training year.

For example, with the training year method, assume that an employer trained all of its supervisors in 2009 and sets 2011 as the next training year. If a new supervisor is trained in 2010 and the employer wants to include the new supervisor in its training year, the new supervisor would need to be trained in 2011 with the employer’s other supervisors.

Independent Contractors

California’s Fair Employment and Housing Act (FEHA) protects independent contractors from workplace harassment. Although California law does not specifically require that independent contractors receive sexual harassment information sheets, you should provide them to independent contractors. This practice ensures that independent contractors are aware of your anti-harassment and reporting policies, including their obligation not to engage in harassing conduct.

The Cal Chamber recommends that employers:

• Ensure all training, including name of provider and dates of training, are maintained for all supervisors.
• Provide mandatory sexual harassment training, such as Cal Chamber’s online, interactive 2-Hour California Harassment Prevention Training, every two years based on the tracking method(s) the company chooses.
• Give all employees a copy of the employer’s anti-harassment policy and a sexual harassment information sheet at least once a year but always upon hire.

If you have questions, please contact your Account Manager.

This notice is intended for information purposes only and is not to be considered legal advice.