Seyfarth Synopsis: A new set of proposed regulations requires all janitorial employees and their supervisors to receive two hours of in-person, interactive sexual harassment training every two years.
The Property Service Workers Protection Act of 2016 requires employers with at least one janitorial worker (including front line cleaners) to provide biennial sexual violence and harassment prevention training to janitorial employees and their supervisors. The law states that as of January 1, 2020, this training must be completed in order for these employers to register or renew their business with the Division of Labor Standards Enforcement (DLSE). But there's a catch: janitorial employers have been left in the dark as to exactly what these training regulations will entail while the DLSE irons out the details.
The DLSE's proposed regulations require:
- In-person, interactive training. The regulations expressly forbid webinars, e-learning training, and the like as the sole method for providing this training. The training must be designed to encourage participants to apply the lessons learned regarding sexual violence and harassment to their particular work environment. For new employees, this in-person training must occur within the first six months of employment.
- Two hour duration. Even janitorial employees with no supervisory responsibilities must take two hours of training, a departure from the one-hour requirement for nonsupervisory employees set forth in Government Code section 12950.1. Nevertheless, the training can be broken up into hourly increments.
- Resources for sexual violence and harassment victims. In addition to the harassment training content required under Government Code section 12950.1 and related regulations, the training must identify local, state, and national resources for victims of unlawful sexual violence and harassment. In particular, community-based resources, such as rape crisis centers, should be identified.
- Training to be provided in attendee's language. The in-person training must be provided in a language understood by the attending janitorial employees and their supervisors. All written materials must be at their literacy level as well.
- Written record of completed training. Employers must keep training records for three years. Employers must retain—and give the DLSE upon request—the names of the attendees and the trainer, a copy of all written materials, sign in sheets, and certificates of attendance.
Although the DLSE's official training protocols were to be finalized no later than January 1, 2019, the comment period was extended. To date, the DLSE has not issued final regulations.
Meanwhile, pending legislation (AB 547) has passed the Assembly and is currently before the Senate. If passed, this bill could make the training requirements even more onerous. AB 547 would require employers to use qualified organizations to provide the mandated training, and would require lodging a report with the DLSE within 48 hours of the training. If this bill becomes law, the DLSE would have to develop and maintain a list of these qualified organizations (as well as peer trainers within these organizations).
What should employers with one or more janitorial employees do until the DLSE straightens out the training requirements? For now, the Department of Industrial Relations advises that employers can meet their current obligations by giving their janitorial employees and their supervisors copies of the Department of Fair Employment and Housing (DFEH) pamphlet DFEH-185, "Sexual Harassment." But employers will need to be prepared to implement the new regulations once they are finalized.
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