United States: Third Time A Charm? The FEHC Further Refines Draft Regulations As Employers Prepare For The 2007 Training Year

At its August 29, 2006, meeting, the California Fair Employment and Housing Commission ("the Commission," or FEHC) issued revisions to its second set of draft regulations issued in this past June. The June 2006 revisions¹ had modified the original draft regulations, which were issued by the Commission in December 2005.² The September 2006 revisions contain important clarifications and 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).

A corrected version was issued by the Commission on September 8. This new, corrected set of draft regulations are open for public comment until September 15, 2006. Employers can find a copy of the new draft regulations and instructions on submitting comments on the California Fair Employment and Housing Commission's website

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 December 2005 draft regulations 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 to consider the comments submitted.

This ASAP reviews only the key changes the August 2006draft regulations make to the June 2006 draft regulations.

A.B. 1825 requires re-training supervisors every two years. The December 2005 draft regulations contained two methods of tracking retraining – individual tracking and "training year" tracking. In the June 2006 draft regulations, the "training year" method was eliminated, and employers would have to monitor the training deadlines for each supervisory employee. The August 2006 draft regulations brings the training year concept back – albeit in a modified format. Employers are now allowed to use individual tracking, training year tracking, or a combination of both methods.

Individual Tracking (IT) - An employer may track training for each supervisor measured two years from the date of the completion of the last training for that individual.

For example, Rosa completes her first training program on January 26, 2005. Rosa must be retrained no later than January 26, 2007.

Practically speaking, this will require a retraining schedule of somewhat less than two years to ensure that training is completed within the two-year timeframe.

Training Year Tracking (TYT) - An employer can designate a "training year" to train supervisors., After doing so, an employer must again retrain all of its supervisors by the end of the next "training year," two years later -- even those newly hired or promoted supervisors who received training the prior year. However, unlike the language in the December 2005 regulations, which first described training year tracking, no supervisor can be retrained any later than six months from the two-year anniversary of his or her training.

For example:

• December 2005 Regulations Training Year Method - Rosa received training on January 15, 2005. Rosa must be retrained no later than December 31, 2007.
• June 2006 Regulations – No Training Year Method Allowed - Rosa received training on January 15, 2005. Rosa must be retrained no later than January 15, 2007.
• August 2006 Training Year Method - Rosa received training on January 15, 2005. Rosa must be retrained no later than July 15, 2007.

Practically speaking, the TYT method described in the August 2006 draft regulations can lengthen the training cycle for existing supervisors by up to six months.

For newly hired and promoted supervisors, using the TYT method may shorten the training cycle. Under the August 2006 draft regulations, if an employer designates 2005 and 2007 as "training years," new hires trained in 2006, under the TYT method, would have to be trained in 2007.

Employers can use a combination of the IT and TYT methods. The combination approach will most likely be used if an employer uses the TYT method for the bulk of its employees, and then does a round of new hires. The new hires can be on the IT method for retraining.

Most employers will still choose the TYT method as the only (or predominant) choice for tracking, and require some new hires to be trained two years in a row. Why? Because it is easier to administer in the long term, and the "back-to-back training" incidence would only occur after the first year of hire. Then the employee would cycle into the alternative year TYT method. Here's an example:

• Company X uses the TYT method for all employees, designating 2005. 2007, 2009, etc. as training years
• Rosa is a new hire on June 1, 2006.
• For her first round of training, Rosa must be trained no later than December 31, 2007 (less than two years from his hire date).
• For her second round of retraining, Rosa must be trained no later than December 31, 2009.

Although not highlighted in the draft regulations, the regulations do clarify that only supervisors located in California must receive the required training. The previous drafts required any supervisor who "directly supervised" someone in California to be trained. The change was most likely made to conform the regulations to the language of current A.B. 2095, which will likely become effective on January 1, 2007.

This change will not affect prudent employers, who will continue to train, at a minimum, those directly supervising California employees. It would be a very awkward situation, if a non-California high level manager, with direct reports located in California, was unaware of the particular anti-harassment requirements under California law.

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 August 2006 draft regulations. Live training sessions must be lead by a "qualified trainer" (QT), A QT satisfies the requirements if as an individual, she or he has demonstrated that:

1. Through formal education and training or substantial experience, the QT can effectively lead in-person or webinar trainings; and
2. the QT is a qualified subject matter expert (SME). SMEs must have "legal education coupled with practical experience, or substantial practical experience in harassment, discrimination and retaliation."

If the trainer meets requirement number one but is not a SME, then a SME must be available to answer questions and provide feedback either during the training session, or within two business days.

All trainers, even those who are notSMEs, must also be qualified to train about the following:

1. What are unlawful harassment, discrimination and retaliation under both California and federal law.
2. What steps to take when harassing behavior occurs in the workplace.
3. How to report harassment complaints.
4. How to respond to a harassment complaint.
5. The employer's obligation to conduct a workplace investigation of a harassment complaint.
6. What constitutes retaliation and how to prevent it.
7. Essential components of an anti-harassment policy.
8. The effect of harassment on harassed employees, coworkers, harassers and employers.

As a practical matter, few employers will want to have two trainers at every session, or available for post-class questions. Further, there are likely to be very few people who are able to train about above listed topics without being a SME. Therefore, most employers will likely have one SME conduct live training sessions.

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 provisions relating to classroom training (and their related training method, the live webinar) have been left substantially unchanged by the August 2006draft.

It is the definition of what constitutes qualified self-study e-learning that has been changed again. For self-study e-learning, the content must now be developed and approved by an instructional designer, QT or SME. An instructional designer is one with expertise in current instructional best practices, and who develops the training content based upon material provided by a SME. The bottom line is that someone with substantial knowledge of harassment law and how to prevent workplace harassment (in the form of a qualified trainer or subject matter expert) must be involved in developing the content for self-study e-learning.

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 more 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 bookmarking functions are allowed.

The new draft does not change the list of subjects that must be included in training However, a "preamble" has been added to ensure that training programs promote the underlying purpose of A.B. 1825 to prevent workplace harassment, as opposed to merely providing defense against litigation. All learning objects must: (1) assist California employers in changing or modifying workplace behaviors that create or contribute to sexual harassment, as that term is defined in California and federal law; and (2) develop, foster and encourage a set of values in supervisory employees who complete mandated training and education that will assist them in preventing and effectively responding to incidents of sexual harassment.

The August 2006 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.

• 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.
• Carefully audit which non-California supervisors "directly" supervise California employees – including those supervisors who do not reside in California. Although the regulations no longer require such training, it is highly advisable. Cast a broad net in defining your training audience.
• 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.
• 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.
• Confirm that both your trainers and content developers satisfy the knowledge and experience requirements detailed by the statute and the August 2006 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.
• 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.
• 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.
• Review your recordkeeping procedures for meeting A.B. 1825 training requirements to determine how to most efficiently track individual supervisor training.
• 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.
• 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. .

Footnotes