In The Know: Small Firms Must Provide Sexual Harassment Training

Last year, the California legislature passed S.B. 1343, which changed the rules on which employers in California have to provide sexual harassment training, and which employees have to receive that training.  The changes mean that many small firms (those with 5 or more employees) will have to start providing sexual harassment training to their employees, and it must be provided by January 1, 2020.  Cal. Govt. Code § 12950.1(a). 

Which employers have to provide the training?  All employers with 5 or more employees must provide the training.  Cal. Govt. Code § 12950.1(a) & (i).  Department of Fair Employment and Housing (DFEH) regulations define “employee” to include full-time, part-time, and temporary employees—and the statutory definition is sufficiently broad that it may include independent contractors.  In addition, under DFEH regulations, there is no requirement, when determining which employers are subject to the law, that the 5 employees work at the same location or that all work or reside in California.  2 Cal. Code Regs. tit. 2, § 11024(a)(5).

Who has to be trained?   Under the revised law, by January 1, 2020, all employers of 5 or more employees must provide 1 hour of sexual harassment and abusive conduct prevention training to non-supervisory employees, and 2 hours of such training to supervisory employees.  This training must be provided once every two years.  New employees must receive the training within 6 months of their hire date.  In addition, beginning January 1, 2020, if a firm hires seasonal or temporary employees—or any employee hired to work less than 6 months—training must be provided within either 30 days of the hire date or 100 hours worked, whichever occurs first.

What has to be included in the training sessions?  The training shall include information and practical guidance on federal and state laws relating to the prohibition against and the prevention and correction of sexual harassment, as well as the remedies available to victims.  Employees must also be trained on “abusive conduct,” as well as harassment based on gender identity, gender expression, and sexual orientation.  Practical examples shall be included. The training may also include “bystander intervention training” (Cal. Govt. Code § 12950.2).

Who can conduct the training?  Training must be provided by a qualified trainer.  A qualified trainer includes attorneys who have been members of the bar of any state for at least two years and whose practice includes employment law under the Fair Employment and Housing Act or Title VII of the federal Civil Rights Act of 1964.  2 Cal. Code Regs. tit. 2, § 11024(a)(9).

Is guidance available?  Yes.  DFEH has produced some FAQs, a training toolkit, and other resources to help employers comply.  Information is available at www.dfeh.ca.gov. The law also includes a disclosure requirement (Cal. Govt. Code § 12950(b)); DFEH has produced a brochure and poster intended to satisfy this mandate.  

Interpretation of the new law is evolving.  Firms that may be subject to the new rules would be well advised to seek the advice of an employment law colleague to ensure they are in compliance. 

A bill is pending in the legislature this year—S.B. 778—which would delay the training mandate for one year (to January 1, 2021) and would allow employers who have provided the training in 2019 to wait 2 years before providing refresher training.