United States: In The Home Stretch (Again): The FEHC Issues Revised Draft Regulations as Employers Prepare for the 2007 Training Year

On June 30, 2006, the California Fair Employment and Housing Commission ("the Commission" or FEHC) issued its second set of draft regulations on sexual harassment training of supervisors of California employees. Substantially different than the initial draft regulations, the new draft provides important guidance at a time when most employers are preparing to retrain their supervisory employees in 2007 as required by California law. (A.B. 1825 (Cal. Leg. 2003-2004) now codified as Government Code §12950.1).

As most employers are aware, A.B. 1825 requires employers who do business in California, and who have 50 or more employees, to provide harassment prevention training to all supervisory employees once every two years. As the first round of training was to be completed by December 31, 2005, the next training year for most employers is 2007. Newly hired or promoted supervisors must be trained within six months of the assumption of a supervisory position.

The initial draft regulations, based on guidance from an advisory committee of industry leaders, were released on December 16, 2006. (See "In The Home Stretch: Huggers, Instructional Designers, and the Pending Draft of the FEHC's Proposed Regulations for California's Required A.B. 1825 Sexual Harassment Training.") The second draft regulations were issued on June 30, 2006, and are open for public comment until July 20, 2006. Employers can find a copy of the new draft regulations and instructions on submitting comments on the Commission's website.

A final publication date for the regulations has not been specified, but California regulatory procedure requires that the Commissioners complete their regulatory drafting work by December 16, 2006, or the administrative regulation drafting process must start over.

Although the regulations are still subject to change before final publication, proactive employers who are planning for the 2007 re-training year should consider these revised regulations in charting their upcoming training. The first draft regulations issued last December went through an extensive 45-day public comment period and two public meetings where testimony was heard. For this revised draft, the current comment period is only 15 days long, and there will be no public meetings – only a Commission meeting on August 29, 2006, to consider the comments submitted.

The following are some frequently asked questions and answers on the revised draft regulations and their affect on sexual harassment training:

The regulations are not retroactive, and thus are not expected to invalidate covered employers' 2005-06 training initiatives. The FEHC recognizes that, before these regulations are finalized or released, conscientious employers would have continued or completed training for current or new supervisory employees. In fact, both the first and second draft regulations provide a safe haven for employers who have made "a substantial, good faith effort to comply with section 12950.1 by completing training of its supervisors prior to the effective date of these regulations...." Such employers "shall be deemed to be in compliance with section 12950.1 regarding harassment training as though it had been done under these regulations."

While many provisions of the original regulations were left unchanged, several provisions contain substantial revisions.The sections with the most significant changes, or which are entirely new, cover the following topics:

• Training of out-of-state supervisory employees

• Interactivity requirements for both live and self-study e-learning.

• The level of expertise needed for both trainers and instructional designers.

• The timing requirements for self-study e-learning.

• Record keeping and training documentation requirement (new).

• Requirements for incorporating and distributing harassment policies as part of the training (new).

• The elimination of the "training year" concept for tracking re-training obligations.

A.B. 1825 applies only to employers with 50 or more employees or contractors. This seemingly simple language leads to several important questions, which the revised draft regulations answer. Employees include full time, part time, and temporary workers. As defined by the criteria specified in the California Government Code 12940(j)(5), contractors are those providing work under a contract for each working day in 20 consecutive weeks in the current calendar year or preceding calendar year.

Even employers with less than 50 employees in California may be covered by A.B. 1825. The revised draft regulations define "employer" as "any person engaged in any business or enterprise in California, who employs 50 or more employees to perform services for a wage or salary or contractors or any person acting as an agent of an employer, directly or indirectly." As the draft regulations now state: "There is no requirement that the 50 employees or contractors work at the same location or all reside in California."

The revised draft regulations contain an important clarification applicable to employers with seasonal workers, for whom the size of the workforce changes throughout the year. An "employer" is deemed to have 50 or more employees if the entity employs or engages "fifty or more employees or contractors for each working day in any twenty consecutive weeks in the current calendar year or preceding calendar year."

The revised draft regulations clarify the application of the training requirement to out-of-state supervisors managing California employees. The June 2006 regulations state that all personnel who "directly" supervise California employees must be trained, even if the supervisory personnel are not physically located in California. The word "directly" was not included in the initial draft regulations.

The revised draft regulations specifically state that businesses that expand to 50 employees and/or contractors, and thus become subject to these regulations, must provide training within six months of becoming covered.

A.B. 1825 mandates that trainers "must have knowledge and expertise in the prevention of harassment, discrimination, and retaliation." The definition of these requirements has been significantly changed in the revised draft regulations. Gone is the list of desirable and undesirable trainer qualities contained in the initial draft regulations, such as being a good listener, and not being a "hugger." Instead, trainers are qualified if they possess these two requirements:

1. Legal education or practical experience in harassment, discrimination, and retaliation training; and
2. Knowledge of California and federal laws prohibiting unlawful harassment, discrimination and retaliation, to be able to answer questions from the participants.

The revised draft regulations modify the trainer or educator's qualifications to train by:

1. Adding required training concerning "discrimination and retaliation under both California and federal law."
2. Adding the requirement of instructing on "the employer's obligation to conduct a workplace investigation of a harassment complaint," rather than instructing how to investigate such a complaint.
3. Clarifying what constitutes retaliation and how to prevent it.
4. Identifying the essential components of an effective anti-harassment policy (instead of requiring instruction on the employer's anti-harassment policy).
5. Adding an explanation of the effect of harassment on harassed employees, coworkers, harassers and employers.

The use of interactive material is now mandatory: the trainer "shall [not "may"] use hypotheticals or examples ... and involve the supervisor through questions, problem solving, or tests and quizzes to insure that the information is understood." (emphasis added).

These knowledge and expertise standards also apply to those responsible for "writing, reviewing and/or approving the content of harassment training." This language requires qualified subject matter experts to be involved in both the development and deployment phases of the training programs. Whether developing programs in-house or purchasing programs from outside vendors, employers should verify that the developers meet these knowledge and expertise requirements.

The revised draft regulations made some changes to the required content of the training.

• The revised draft regulations clarified references to "sexual" harassment, as contrasted with "other forms of harassment."

• The definition of the training's required "practical examples" was expanded to include techniques "such as factual scenarios taken from case law, news and media accounts, hypotheticals based on workplace situations and other sources which illustrate sexual harassment, discrimination and retaliation using training modalities such as role places [sic], case studies and group discussions."

• Training need only include the employer's obligation to conduct an effective workplace investigation, not how to conduct such an investigation.

• Employers may now train either on the employer's own policy or the essential elements of a sample anti-harassment policy. However, "[r]egardless of whether the employer's policy is used as part of the training, the employer shall give each supervisor a copy of its anti-harassment policy and require each supervisor to read and to acknowledge receipt of that policy."

Classroom training is the one method of training specified by A.B. 1825. However, the statute does allow for "other effective interactive training," in addition to traditional classroom instruction.

The revised draft regulations explicitly state that e-learning, both by webinars and by self-study methods, is permissible. Such approval, however, is predicated on the training satisfying several requirements, which were added or modified from the initial draft regulations. The content must be designed by an "instructional designer" – e.g., that person meets the same knowledge and expertise standards as someone qualified to conduct the training.

Self-study ("e-learning") programs must provide a link or directions on how to contact directly qualified trainers or educators. These trainers or educators must be available to answer questions and to provide guidance and assistance on harassment training issues within a reasonable period of time after the supervisor asks the question, but no less than two business days after the question is asked. Employers using self-study programs must also ensure that students spend at least two hours taking the course, although book marking functions are allowed.

Webinars must document that each supervisor who was not physically present in the same room as the trainer attended the entire training and actively participated in the training's interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities. The webinar must provide the supervisors an opportunity to ask questions, to have them answered and otherwise to seek guidance and assistance.

The revised draft regulations seek to ensure high quality programs regardless of the training method used by requiring a high level of interactivity. Therefore, all programs must "include [1] questions that assess learning, [2] skill-building activities that assess [a] the supervisor's application and [b] understanding of content learned, and [3] numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain measurably engaged in the training."

Unlike the initial draft regulations, the revised draft regulations set forth detailed record keeping and retention requirements. Employers must now track compliance by keeping records of its harassment training. The records must include:

• Supervisor's name

• Training date

• Type of training

• Name of the trainer, educator or instructional designer

The records reflecting this information must be maintained for a minimum of two years.

A.B. 1825 requires that new supervisors be trained within six months of assuming their supervisory position, and once every two years thereafter. The revised draft regulations contain a "carry over" provision that is potentially helpful in managing supervisors hired from other organizations. Once an employer has confirmed that the new supervisor has received within the past two years supervisor training that complies with A.B. 1825, the newly hired supervisor can be provided training on the two-year tracking schedule from the date of the training by the previous employer. To take advantage of the carry over provision, the new supervisor must be provided a copy of the employer's harassment policy and be required to read and acknowledge it within the six-month time frame.

Employers who take advantage of this provision must recognize that they are assuming that the prior employer's training program complied in all respects with the requirements of A.B. 1825 and its enforcing regulations. Prudent employers, therefore, will consider training a newly-hired supervisor within six months of hire, even if the newly-hired supervisor has recently been trained by a previous employer.

A.B. 1825 requires re-training supervisors every two years. The initial draft regulations contained two methods of tracking retraining – individual tracking and "training year" tracking. In the revised draft regulations, the "training year" method has been eliminated, and employers must monitor the training deadlines for each supervisory employee.

The lack of a training year tracking system adds a major burden for employers. For example, if an employer with 500 supervisors is using a self-study training method, it is possible that there are supervisory employees taking the training every day. This leaves the employer with 500 deadlines to monitor 365 days a year.

Employers should think carefully about ways to manage this burden. Practically speaking, the individual tracking methods requires a retraining schedule of somewhat less than two years to ensure that training is completed within the two-year timeframe. A learning management system that will track the date each supervisor completed the training is now crucial. Assigning certain letters of the alphabet to specific training dates and confining training of employees with corresponding last names to particular months of the year can also help employers narrow the training deadlines and minimize room for error. For example, assume an employer has 500 supervisory employees to train in 2007. By assigning particular letters of the alphabet to certain months, the employer can conduct five live training sessions each in March , June, September, and December. This would essentially reduce the training deadlines the employer had to manage from 365 to five during the next training year (2009). A similar method could be used for e-learning.

Although the A.B. 1825 regulations are in revised draft form, they are still subject to change at the Commission's next meeting, scheduled for August 29, 2006, or soon thereafter. Currently, this revised draft of the regulations is the best available guideline for planning for the next training year, building new programs, or choosing outside vendors. The best course of action for employers is to train as broadly and extensively as possible, considering the current guidance available from the FEHC. To do so, here are issues every employer should consider.

1. If you have 50 or more employees in the United States, and some of them work in California, assume A.B. 1825 applies to you, even if you do not have 50 or more employees residing in California.
2. Carefully audit which non-California supervisors "directly" supervise California employees – including those supervisors who do not reside in California. Cast a broad net in defining your training audience.
3. Review the content of your training programs. The revised draft regulations contain several content items that are not specifically mentioned by the statute. Conversely, the statute has several requirements not mentioned in the regulations. The content requirements listed in both the regulations and the statute must be covered.
4. Meet the detailed interactivity requirements mandated for all training delivery methods.
5. Keep auditing the training content even after the program is purchased or finalized. The regulations call for covering both California and federal law. In 2005, the California Supreme Court and the U.S. Court of Appeals for the Ninth Circuit (which includes California) issued three landmark decisions regarding harassment and retaliation. This year, the California Supreme Court issued its ruling on the Friends sexual harassment case and the U.S. Supreme Court expanded the scope of retaliation claims. Because the law changes, programs that were sufficiently compliant one month may not be the next.
6. Ensure both your trainers and content developers satisfy the knowledge and experience requirements detailed by the statute and the revised draft regulations. Ask yourself whether you would be comfortable with your trainer or vendor being cross-examined at a trial or in an administrative proceeding on his or her credentials.
7. If you are using e-learning, whether self-study or webinars, ensure that the programs meet the extra requirements of those training methods, including the minimum two-hour length.
8. Consider conducting training programs longer than the two-hour minimum. Even a 2.5 hour program provides employers significant extra protection. Employers can say that they conducted more than the minimum training required by law and regulations, and the extra time provides an additional comfort level against claims that the training was less than two hours.
9. Review your recordkeeping procedures for meeting A.B. 1825 training requirements to determine how to most efficiently track individual supervisor training. In addition, consider how to conduct future training in order to minimize the burden of individual tracking as currently stated in the second draft regulations.
10. Consider providing similar training to all supervisory employees nationwide. Doing so avoids inconsistency in training, and will help buttress the organization's defense to litigation against claims of inadequate or inconsistent training.
11. Provide training beyond sexual harassment. At a minimum, programs should cover other forms of workplace harassment, and include examples not only of sexual harassment, but of other types of prohibited conduct. The regulations should allow such topics to be covered and doing so will provide additional protection from damages in litigation. Remember that training on subjects such as discrimination, ADA, FMLA, and ethics can provide significant protection against civil and criminal damages. Covering these subjects would certainly require training longer than two hours. However, the additional time will be a small investment when compared to the amount of liability protection the training provides.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.