JANUARY 2007

REGULATORY UPDATE

FEHC Adopts Final Proposed Sexual Harassment Training & Education Regulations

On November 14, 2006, the Fair Employment and Housing Commission (“FEHC”) adopted its Final Proposed Sexual Harassment Training & Education regulations.  These regulations interpret AB 1825 (Government Code section 12950.1), which requires sexual harassment training for supervisors of employers with 50 or more employees.  The FEHC will submit the regulations to the Office of Administrative Law (“OAL”) for its review and approval.  The OAL has 30 days to review and approve the regulations, or disapprove them and require further changes.  Once approved, the OAL sends the regulations to Secretary of State; 30 days later, the regulations become effective as law.  The FEHC estimates that the regulations will become effective by approximately February 14, 2007.  The regulations will appear as section 7288.0 of Title 2 of the California Code of Regulations.

The main provisions of the final proposed regulations are:

1. Definition of “having 50 or more employees” – This phrase is defined to mean an employer that employs or engages 50 or more employees or contractors for each working day in any 20 consecutive weeks in the current calendar year or preceding calendar year.  There is no requirement that the 50 employees or contractors work at the same location, or that they all work or reside in California.
   
   
2. Definition of “effective interactive training” – This phrase means any of the following types of training:  (1) “classroom” training (in-person training provided to a supervisor by a qualified trainer, in a setting removed from the supervisor’s daily duties); (2) “E-learning,” an interactive, computer-based training whose content is written, developed and approved by an instructional designer, qualified trainer or subject matter expert; or (3) a “webinar,” an Internet-based seminar that is created and taught by a qualified trainer and transmitted over the Internet or intranet in real time.
   
   
3. Frequency of training – Two methods of tracking compliance are provided:  “individual” tracking and “training year” tracking.  An employer may use either one, or a combination of both methods.  “Individual” tracking means that an employer tracks the training requirement for each supervisory employee, measuring two years from the date of completion of the last training of that individual supervisor.  “Training year” tracking involves an employer’s designation of a “training year” in which it trains its supervisory employees and then retrains them by the end of the next “training year,” which would be two years later.  For newly hired or promoted supervisors who receive their initial training during a different training year, the employee can include those new supervisors in the next regular training year.
   
   
4. Content of the training – The required training must include:


• The definition of unlawful sexual harassment under state and federal law
• Statutory provisions and case law concerning the prohibition against and the prevention of unlawful sexual harassment
• Types of conduct that constitute harassment
• Remedies available for sexual harassment
• Strategies to prevent sexual harassment in the workplace
• “Practical examples” such as factual scenarios taken from case law, news and media accounts
• The limited confidentiality of the complaint process
• Resources for victims of unlawful sexual harassment
• An employer’s obligation to conduct an effective workplace investigation of a harassment complaint
• Training on what to do if the supervisor is personally accused of harassment
• The essential elements of an anti-harassment policy and how to utilize it if a harassment complaint is filed
• Providing the employer’s anti-harassment policy or a sample policy to the supervisors
  
  
5. Remedies for failure to comply with training obligations – The FEHC may institute an adjudicatory proceeding and issue an order finding an employer failed to comply with Government Code section 12950.1.  The Commission may order such compliance to occur within 60 days of the order.

Employers should promptly begin familiarizing themselves with all of the provisions of these proposed final regulations, on the assumption they will be approved with little or no change in the next 30 to 60 days.  In future issues of the ELU we will, of course, notify you of when the regulations become effective as law.  Do not hesitate to contact one of Klinedinst’s employment law attorneys with questions about implementing the training and education regulations.

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