NEW CALIFORNIA LAWS ALTER EMPLOYERS’ WORKPLACE HARASSMENT TRAINING OBLIGATIONS

By: Jordan R. Turner, Associate | Brown Law Group

Practice Tips

  • Expand sexual harassment training to non-supervisory, temporary, and seasonal employees;
  • Consider implementing bystander training provisions; and
  • Attend Brown Law Group’s Annual Employment Law Update on January 24, 2019, for more information on the state of workplace harassment law.

As we embark on 2019, companies doing business in California should take heed of the state’s new mandatory and voluntary policies regarding training employees on workplace harassment prevention. As 2018 neared its end, former Governor Jerry Brown signed a flurry of labor and employment legislation, including SB-1343 and SB-1300, both of which contain provisions directly relating to anti-harassment training. Although only the training provisions in SB-1343 are mandatory, California employers should strongly consider incorporating the provisions in both statutes, as 2019 is poised to be another seminal year in the fight against toxic workplace cultures.

I. SB-1343 Expands California’s Mandatory Sexual Harassment Training to Smaller Employers and Non-Supervisory Employees.

Prior to the enactment of SB-1343, existing law under the California Fair Employment and Housing Act (“FEHA”) required employers with 50 or more employees to provide to all supervisory employees with at least 2 hours of prescribed training and education regarding sexual harassment prevention, abusive conduct prevention, and prevention of gender or sex-based harassment. Such training was to be provided to all supervisory employees within 6 months of their assumption of a supervisory role, and once every 2 years thereafter.

SB-1343, codified at Government Code sections 12950 and 12950.1, significantly expands the above training requirements.  Under this law, employers with 5 or more employees, including temporary or seasonal employees, are now required to provide at least 2 hours of sexual harassment training to all supervisory employees. Further, all employers with 5 or more employees must provide at least one hour of sexual harassment training to all non-supervisory employees. Such training must be completed by December 31, 2019, and once every 2 years thereafter.

In order to facilitate the proper incorporation of these new requirements, the Department of Fair Employment and Housing (“DFEH”) issued Frequently Asked Questions (FAQs), detailing that all employees must be trained during the calendar year 2019. Thus, even supervisors who received training in 2018 will need to be trained again in 2019. Recognizing the significant burden that the new training requirements impose on smaller employers, the DFEH has said it would provide training videos in 2019, and its website currently offers a free PowerPoint training, which eligible trainers may use in live trainings. Accordingly, all companies with 5 or more employees doing business in California should take a look its training regimen and make adjustments in accordance with this new provision.

II. SB-1300 Encourages Voluntary Bystander Intervention Training.

As highlighted in our last legal article on California’s new employment legislation on workplace harassment prevention, SB-1300, codified at Government Code section 12950.2, primarily focuses on strengthening employees’ ability to prosecute and bring to trial claims of sexual harassment. However, SB-1300 also contains a notable provision related to the training of employees on how to respond to incidences workplace harassment that they directly witness in the workplace. Although SB-1300 does not require employers provide this “bystander training,” the law encourages employers to do so for the purpose of fostering a healthy and cohesive work environment where co-workers look out for one another.

Specifically, the bystander training contemplated by SB-1300 entails the inclusion of information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors in the workplace, and to motivate bystanders to take action when they observe such behaviors. This training is meant to address the so-called “bystander effect”—the tendency for individuals to turn a blind eye to the victimization of others in the workplace. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon to support their intervention.

III. California Employers Should Quickly Update Their Workplace Training Programs to Incorporate New Guidelines and Requirements.

First, in accordance with the mandatory requirements imposed by SB-1343, employers of all sizes must be aware of their training obligations under FEHA. Companies employing 5 or more employees must educate their employees on anti-sexual harassment practices. As part of the training, it is recommended that training on all types of discrimination and harassment be covered, and that all employees acknowledge in writing the company’s anti-discrimination and harassment policy.

Second and for good measure, employers should consider adding bystander intervention training, pursuant to SB-1300, to their mandatory harassment training. This training will empower employees to stop disrespectful and abusive behaviors before they rise to the level of illegal harassment and help to reinforce a workplace culture of respect and civility.

In light of the above legislation, employers should enlist the services of their employment counsel to review their training programs in order to ensure compliance. For more information, feel free to contact the employment attorneys at Brown Law Group, and be sure to join us at our 2019 Employment Law Update on January 24, 2019.

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