United States: In The Home Stretch: Huggers, Instructional Designers, and the Pending Draft of the FEHC´s Proposed Regulations for California´s Required A.B. 1825 Sexual Harassment Training

As many employers are aware, A.B. 1825, passed in the 2003-2004 session of the California Legislature, requires employers who do business in California, and who have 50 or more employees, to provide harassment prevention training to all supervisors. The first round of training must be completed by December 31, 2005, and the training for a supervisor must be repeated every two years. Newly hired or promoted supervisors must be trained within six months of the assumption of a supervisory position.

Since A.B. 1825 became law, employers have busied themselves with meeting the December 31, 2005, deadline. These efforts have been taken in a vacuum of regulatory information about what the law requires, a particularly uncomfortable situation for employers trying to meet a legal mandate.

To provide clarity to employers on the specific requirements of the harassment training law, the Fair Employment and Housing Commission (FEHC) appointed a Blue Ribbon Advisory Committee ("Advisory Committee") to create regulations for A.B. 1825.

To draft the regulations, the FEHC recruited members for the Advisory Committee who could provide excellent guidance and expertise on harassment and discrimination prevention, as well as employment law training. As a recognized leader in both fields, Garry Mathiason, a Littler Mendelson shareholder and Chair of the firm's Corporate Compliance Practice Group, was appointed to the Advisory Committee.

The draft regulations prepared by the Advisory Committee and the FEHC will be released by December 16, 2005, and will be available online at http://www.fehc.ca.gov/pub/reg.asp.

California employers with 50 or more employees should keep tabs on the draft regulations now working their way through the administrative process, and make their concerns known within the comment period. The draft regulations specify 11 elements of required training – including two which do not appear directly in the applicable statute (Government Code §12950.1) – and address more than 40 separate issues, questions and concerns.

Once released, the regulations will be open for public comment for a minimum of 45 days and comments may be sent, faxed or e-mailed to the FEHC. Public hearings will be held in San Francisco on February 1, 2006, and in Los Angeles on February 3, 2006. Following the public comment period, the FEHC reviews the submissions and may make further modifications to the proposed regulations. Before becoming final, the FEHC will provide an additional 15 days for comments on the proposed modifications or new material. Depending on the amount of time the FEHC takes for internal review, California employers can expect the regulations to become effective in second or third quarter of 2006. Progress of the regulations can be tracked at www.fehc.ca.gov.

Employers must realize that these draft regulations are just that – drafts. When completed, the final regulations will be codified at California Code of Regulations (CCR) §7288.0, under a new heading "Harassment Training and Education" (text available when posted at www.calregs.com). The final regulations are likely to change and provide even greater clarity for employers. With this caveat in mind, following are the most important aspects of the current draft of the regulations.

The regulations are not retroactive, and therefore, cannot be used to invalidate 2005 training initiatives. The FEHC recognizes that conscientious employers will have completed the first year of training before the regulations were released or become final. In fact, they provide a "safe haven" for employers who have made a "substantial, good faith" training effort to comply with A.B. 1825 but whose "interpretation differs from that given in these regulations."

A.B. 1825 applies only to employers with 50 or more employees. The Commission seriously debated whether the 50 employees had to reside in California. The bill's author, former Assemblymember, the Honorable Sarah Reyes, intended the law to apply only to organizations with 50 or more employees within the state. She reasoned that the Legislature did not have the authority to dictate employment law requirements for those employers with fewer employees in the state. However, the FEHC reasoned that A.B. 1825 does not contain any specific language requiring the employees to be in-state.

This statutory silence, read in light of employers' expansive obligation to "take all reasonable steps to prevent harassment from occurring," lead the FEHC to define "covered employers" as those with (a) any business or enterprise in California and (b) 50 or more employees nationwide. As the draft regulations now state: "There is no requirement that the 50 employees work at the same location or all reside in California."

Remember that an "employer" has 50 or more employees if the entity "employ[s] fifty or more employees for each working day in any twenty consecutive weeks in the current calendar year or preceding calendar year." This is an important clarification for employers with seasonal workers, where the size of the workforce changes throughout the year.

A.B. 1825 does not contain a definition of supervisory employee. The Fair Employment Housing Act (FEHA) definition of "supervisor" is adopted by the draft regulations. Under the FEHA, a supervisor is any individual having the authority:

… to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action… if the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.¹

The regulations also point out that A.B. 1825 can affect supervisors outside of California. All personnel who supervise California employees must be trained, even if the supervisory personnel are not physically located in California. This is an issue on which Littler attorneys have received many inquiries.

When employers are deciding who should receive the training, the draft regulations contain a helpful provision: Non-supervisory employees who receive A.B. 1825 training will not be deemed supervisory employees simply as a result of the training.

The text of A.B. 1825 is not limited to sexual harassment, and the law requires that training include "practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation."

The draft regulations clarify this requirement. Training can include "other forms of harassment covered by the FEHA, as specified at Government Code section 12940, subdivision (j), and may discuss how harassment of an employee can cover more than one basis."

Classroom training is the one method of training specifically allowed by A.B. 1825. However, the statute does allow for "other effective interactive training" in addition to traditional classroom instruction. The regulations explicitly state that e-learning, both by live webinars and by self-study methods, is permissible. Such approval, however, is predicated on the training satisfying several requirements. Such non-classroom training must:

• Be created by a qualified "instructional designer." Webinars must also be taught by a qualified trainer.

• Incorporate learner feedback or a participation component at least once every 15 minutes, so that employees are "measurably engaged" in the training and acquisition of knowledge is tested.

• Provide an opportunity for feedback.

• Give the learner the opportunity to ask questions and have them answered.

The FEHC standards for training qualifications balance the need for "knowledge and expertise" (specifically required by A.B. 1825) and the need for employer flexibility. Trainers and educators, as well as developers of e-learning ("instructional designers") may include California licensed attorneys, human resource professionals, psychologists or others, provided the instructors have legal education or practical experience in harassment training and knowledge of California laws prohibiting unlawful harassment.

Trainers, educators or developers must be qualified to train on the following topics:

• What is unlawful harassment.

• How to intervene when harassing behavior occurs in the workplace.

• How to report harassment complaints.

• How to investigate harassment complaints and the employer's obligation to do so.

• The illegality of retaliation for filing a harassment complaint and how to prevent retaliation from occurring when an employee has filed a harassment complaint.

• The employers' anti-harassment policy.

In the proposed regulations, desirable and undesirable qualities of a trainer are also defined. Desirable qualities for an effective trainer or educator include a person who: can use various training methodologies; can facilitate small and large group discussions; is an effective listener; has a credible, positive professional reputation, and continues to learn about gender and cultural issues and concerns. Undesirable qualities for an effective trainer or educator include a person who is or has a reputation of being in the workplace or the instructional environment: a "hugger," sexual, flirtatious, aggressive, arrogant, abusive, and demeaning to women or men, telling offensive jokes or using sexual, racial, religious, sexual orientation or other protected bases stereotypes or derogatory language.

In the live setting, the two hours requirement can easily be measured by starting and stopping times. In self-study programs, where learners stop and start on there own, deciding what "two hours" means proves more difficult. The draft regulations provide some clarity.

• "Two hours" of harassment training is either, two hours of classroom or webinar training or, "the amount of time that the same content may be covered in an e-learning program for an average learner." A strict mathematical approach is not required to measure the duration of an e-learning program.

• The FEHC recognizes that the best designed e-learning programs anticipate average run-times. Because different types of learners will take the training at different paces, the draft regulations clarify that "e-learning programs are not required to have a built-in timer that causes rapid learners to view additional content until the two hour standard is met."

There are several extremely helpful provisions in the draft regulations that lessen the burden on employers managing their ongoing compliance obligations. Under the regulations, employers can use either of two methods to meet A.B. 1825's periodic retraining requirement:

1. Individual Tracking
2. Training Year Tracking

Individual Tracking measures the 2-year time period from the date each individual supervisor completed his or her last training.

• For example, Chris completes his first training program on October 26, 2005. Chris must be retrained no later than October 26, 2007.

Training Year Tracking allows employers to designate a "training year" in which to train supervisors. The employer must retrain supervisors by the end of the next training year. Practically speaking, this allows for more than 2 years to pass between some training sessions.

• For example, 2005 is designated as a "training year." Chris takes his first training program on January 5, 2005. Chris must be retrained no later than December 31, 2007.

New supervisors must be trained within six months of assuming their supervisory position, and every 2 years thereafter, measured either by the individual or training year tracking method. If an employer uses the Training Year method, some supervisors may need to be retrained sooner than once every two years.

• For example, an employer has created a training year schedule designated as 2005, 2007, 2009, etc. Chris is hired and receives harassment training in 2006. Chris needs to be trained again in 2007 along with the other supervisory employees, and thereafter, follow the employer's two-year training schedule.

The Training Year method seems infinitely easier to manage than the Individual Tracking method. Assume an organization had 100 managers. In 2005, the organization held two classroom training sessions – one in June and the other in September. Fifty managers took one of these two courses. The remaining 50 lower-level supervisors took a self-study e-learning course at their own pace, completing the course at different times. Using the Individual Tracking method, the organization would have to track the completion dates for the e-training taken for each e-learner. In this scenario, the employer could have as many as 50 Individual Tracking separate deadlines to monitor, in addition to the June and September 2005 training anniversaries. Those who took the July 2005 course would have to be retrained by July 2007. Those who took the September 2005 course would have to be trained by September 2007. Plus, the organization would have to manage a separate training deadline for each of the e-learners.

Under the Training Year method, all supervisory employees would be trained by the end of 2007. The training date is the same regardless of whether the employee took the July or September classroom training or the e-learning. The one drawback with the training year method is that new supervisors trained in the "off year" must be trained again during the next training year.

All training programs, regardless of the training format, must contain the following content:

1. A definition of unlawful harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964. In addition to a definition of sexual harassment, an employer may provide a definition of other forms of harassment covered by the FEHA, as specified at Government Code section 12940, subdivision (j), and discuss how harassment of an employee can cover more than one basis.
2. FEHA and Title VII statutory provisions and case law concerning the prohibition against and the prevention of unlawful harassment in employment.
3. The types of conduct that constitutes harassment.
4. Remedies available for harassment.
5. Strategies to prevent harassment in the workplace.
6. "Practical examples," including but not limited to role plays, case studies, group discussions, and examples with which the employees will be able to identify and apply in their employment setting.
7. The confidentiality of the complaint process.
8. Resources for victims of unlawful harassment, such as to whom they should report any alleged harassment.
9. Training on how to conduct an effective investigation of a harassment complaint.
10. Training on what to do if the supervisor is personally accused of harassment.
11. Training on the contents of the employer's anti-harassment policy and how to utilize it if a harassment complaint is filed.

Employers should note that items 9, 10, and 11 are not specifically mentioned in Government Code section 12950.1 (text available at http://www.leginfo.ca.gov/).

Employers wishing to weigh in on the final form of these regulations should make their comments known by mailing, faxing or emailing letters to the FEHC, or to their state legislators.

While the A.B. 1825 regulations are in draft form and subject to change, the best course of action for employers is to train as broadly and extensively as possible given the current guidance available from the FEHC.

1. If you have 50 or more employees in the United States, assume A.B. 1825 applies to you, even if you do not have 50 or more employees residing in California.
2. Review the content of your training programs. The draft regulations contain several content items that are not specifically mentioned by the statute.
3. Carefully audit who is exerting supervisory influence over California employees – including those supervisors who do not reside in California. Cast a broad net in defining your training audience.
4. Train beyond sexual harassment to cover other forms of workplace harassment. Provide practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.
5. Consider designating training years to help manage the ongoing and re-certification requirements.
6. Ensure that your classroom, webinar trainer, or the developer of your e-learning program satisfies the knowledge and experience requirements detailed above. Ask yourself whether you would be comfortable with your trainer or e-learning vendor being cross-examined at a trial or in an administrative proceeding on the nature of their credentials.
7. If you are using e-learning, ensure that the program is sufficiently interactive and includes:
   A. Engaging practical examples and hypotheticals.
   B. A mandatory learner feedback or a participation component that occurs at least 15 minutes and requires learners to test and apply their knowledge. (From an instructional design standpoint, an effective program should require this kind of interaction far more frequently.)
   C. The ability to ask questions. You should then set up an internal process where questions can be consolidated, reviewed and responded to within a reasonably prompt time frame.
8. Consider providing similar training to all supervisory employees nationwide. Doing so avoids inconsistency in training, and will help buttress the organization's defense to litigation against claims of inadequate or inconsistent training.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.