California’s anti-sexual harassment law received a major update in 2019 with the passage of Senate Bill 1343 (SB 1343), which now requires all employers based in California (with at least five employees) to provide sexual harassment prevention training to all employees, not just supervisors. Re-training is still required every two years, but this biennial requirement now includes regular employees as well as Supervisors.
Not since Governor Arnold Schwarzenegger enacted California’s original Anti-Sexual Harassment law Assembly Bill 1825 in 2004 has there been such a major overhaul to California’s sexual harassment training requirements. So let’s discuss five critical areas of Senate Bill 1343 and how you can ensure your business stays in compliance with the new law.
#1 Supervisors Have Different Training Requirements than Regular Employees
Under SB 1343, California employers with at least five employees must provide a minimum of Two Hours of Sexual Harassment Prevention Training to all supervisory employees. Meanwhile, non-supervisory employees are required to take a minimum of One Hour of sexual harassment prevention training. This makes sense, considering supervisors have additional duties when it comes to sexual harassment complaints and allegations. For example, supervisors have a personal obligation to report any harassment, discrimination, or retaliation immediately on becoming aware of such conduct. In addition, supervisors need to be strongly familiar with the essential elements of an anti-harassment policy, including the supervisor’s role in the complaint procedure. Regular employees do not have these obligations.
#2 The DFEH will make materials available to meet SB 1343’s requirements
The California Department of Fair Employment and Housing (DFEH) understands that changing the training requirement from supervisors only (roughly 25% of an average employer’s staff falls into this category) to all employees (100%) will put a greater strain on employers, requiring more employees to take time out of work to receive training, at cost to the employer. The DFEH’s solution is to make training materials available that employers can use to train supervisors (2 hours in length) and employees (1 hour in length). The DFEH will also allow employers to create their own training programs, provided the materials contain and cover all relevant topics and comply with California law. Please note these materials are not currently available to the public, as the DFEH is presently drafting them. For employers who wish to utilize a trainer with expertise on sexual harassment prevention, the DFEH has published information on the three types of qualified trainers:
Who can provide sexual harassment prevention training?
There are three types of qualified trainers:
1. 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. Human resource professionals or harassment prevention consultants with at least two years of practical experience in:
• Designing or conducting training on discrimination, retaliation, and sexual harassment prevention;
• Responding to sexual harassment or other discrimination complaints;
• Investigating sexual harassment complaints; or
• Advising employers or employees about discrimination, retaliation, and sexual harassment prevention.
3. Law school, college, or university instructors with a post-graduate degree or California teaching credential and either 20 hours of instruction about employment law under the FEHA or Title VII.
#3 Temp Agencies are now Required to Train all Temporary and Seasonal Employees
Employers who utilize temporary employees and/or seasonal employees need to be aware that SB 1343 included a caveat that affects training for temporary employees. However, the client is not actually on the hook to provide the temporary employee with training; this requirement falls on the Temp Agency. Let’s go over a hypothetical example. ABC Construction needs 20 temporary employees for a big project that will only last six months. They pay a local temp agency (let’s call them Temps-R-Us) to provide ABC Construction with 20 temporary employees. Under SB 1343’s new requirements, Temps-R-Us is responsible for providing the 20 employees with sexual harassment prevention training, not the client ABC Construction. The Temp Agency employer must provide Sexual harassment prevention training for temporary and seasonal employees within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than six months.
#4 It is Unclear if SB 1343 contains a MAJOR typo
Attorneys and HR professionals are scratching their heads trying to interpret a sentence that was included in the new law. SB 1343 amended Government Code section 12950.1 and added the following sentence:
An employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by the January 1, 2020 deadline.
One interpretation is that SB 1343 is acting like a reset button – even if a supervisor was trained in 2018 (and thus would not need to retrain until 2020 under the biennial retraining requirement that existed prior to SB 1343 and still exists under SB 1343), they would still have to undergo training in 2019. At this time, it is unclear whether this language was intentional or a keystroke error. Especially since the California Department of Fair Employment and Housing (DFEH) promised to provide California employers with online training materials (see #2 above) that employers can use to satisfy SB 1343 requirements – but these courses will not be made available to the public until “late 2019.” We will keep you posted on this issue once the DFEH clarifies its position and/or changes the language.
#5 Training can be Broken into Shorter Segments
Under SB 1343, employers are now authorized to break training sessions into smaller chunks. For example, prior to 2019, a supervisor had to be pulled away from their job duties to attend a 2-hour training session and complete the full 2-hour block in one sitting. As of 2019, supervisors (and employees) can break up their training sessions into shorter segments. A supervisory or non-supervisory employee can now hypothetically complete twenty minutes of training here and there, and so on, as long as over the course of the training year they complete the minimum training requirements (two hours for supervisors; one hour for regular employees). Our e-learning suite of sexual harassment courses already allow users to engage in training that can stopped and started at their own pace and will work nicely with SB 1343.