California’s AB 1825 Sexual Harassment Training Mandates

The Regulations require that individuals who develop training materials ("trainers") meet certain qualifications.

Trainers can be:

• Attorneys admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or
• Human resource professionals with two or more years practical experience in one or more of the following: a) designing or conducting discrimination, retaliation and sexual harassment prevention training; b) responding to sexual harassment complaints or other discrimination complaints; c) conducting investigations of sexual harassment complaints; or d) advising employers or employees regarding discrimination, retaliation and sexual harassment prevention, or
• Professors and instructors in law schools, colleges or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.

Employers who develop their own programs, or procure them from outside vendors, must be able to clearly demonstrate the active, hands-on participation of a true sexual harassment-prevention expert. This relates not only to a program's development, but also its ongoing maintenance.

Long Term, Exclusive Relationship with the Nation's Preeminent Employment Law Firm.

ELT was founded by California- based Littler Mendelson, the nation's largest employment law firm. The firm remains our exclusive content partner for employment-related training.

ELT's relationship with Littler gives us access to a "brain trust" of more than 600 employment law specialists and the flexibility to include their attorneys in every step of course development, testing and updating.

Because of the Littler relationship, we are also able to use course scenarios drawn from real case law, anticipate cutting edge legal issues, and always meet or exceed every regulatory and statutory mandate - including those imposed by AB1825 and its final regulations.

As a result, our harassment solution can withstand intense legal review. In the event of litigation or a formal administrative proceeding, our ELT and Littler content developers are available for cross examination regarding their legal credentials, their practical experience in workplace harassment and their hands-on involvement in developing ELT courses.

The Regulations impose heightened interactivity requirements for all courseware, including:

• "Questions that assess learning;"
• "Skill-building activities that assess the supervisor's application and understanding of content learning;" and
• "Numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain measurably engaged in the training."

With respect to e-learning, we at ELT believe this section of AB 1825 means that it is critical to avoid developing or purchasing programs that involve a one-way "information dump" or excessive amounts of passive reading. Every component of the program should be highly interactive and require the learner to constantly apply knowledge.

Engaging, Effective Educational Design. ELT's Workplace Harassment course engages learners by using a story-based course with a believable plotline and characters. The evolving story presents learners with real-world scenarios that deliver your message and make sense in today's business environment.

Interactive Exercises Reinforce Lessons. Our Workplace Harassment course also reinforces key lessons with interactive questions that must be resolved before learners proceed. In the standard supervisor course, supervisors complete more than 40 interactive questions and activities, ensuring they stay engaged throughout the learning experience.

Supervisor's Resolve Real Life Situations. In the supervisor version, learners actually become part of the story through special simulations that present realistic workplace scenarios and then ask the supervisors to resolve them.

The Regulations require that every online program must "provide a link to or directions on how to contact a trainer" for "questions and guidance."

ELT's "Ask A Question" Link.

An "Ask a Question" link is available throughout the Workplace Harassment course.

To provide learners immediate and consistent answers to their questions, the link includes a fully indexed and searchable database of hundreds of frequently asked questions.

To address questions that involve specific employer policies, or that may contain a complaint, the "Ask A Question" link can also include email links, links to other employee resources, Hotlines, phone numbers and directions to contact appropriate organization leaders. The information in the link also appears automatically at the end of the program, and must be acknowledged by learners before they complete the course.

The Regulations require employers to cover the elements of their anti-harassment policy and address how to handle complaints.

The regulations further provide that "regardless 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."

ELT's "Policies" Icon

Employer's policies are available throughout the Workplace Harassment course under the "Policies" icon and appear automatically before learners complete the course. ELT's electronic certification screen also asks learners to confirm that they have received and read your policies – this receipt is tracked in our LMS. All policies are printable.

Supervisors Are Encouraged to Report Potential Problems

The importance of reporting concerns or questions and understanding the specifics of the employer's complaint procedure is reinforced in ELT's Workplace Harassment course.

The Regulations provide that employers must track sexual harassment training for each supervisor using the Individual Tracking Method, the Training Year Method, or a combination of both.

• Individual Tracking Method - Under this method, an employer can track training for each supervisor measured two years from the date of the completion of the last training for that individual. E.g. Doug receives training on January 15, 2005. Doug must be retrained no later than January 15, 2007.
• Training Year Tracking Method - Under this method, an employer can designate a "training year" to train some or all of its supervisors, and thereafter, must again retrain these 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.

Employers are also required to keep records of the training provided to supervisors for at least 2 years. The retained record must include:

• The supervisory employee's name;
• The training date;
• The type of training; and
• The name of the trainer, provider.

ELT's Learning Management System (LMS) allows clients to easily track and report on individual learner training records and to schedule appropriate re-training.

ELT's easy-to-use LMS can be quickly populated with an employer's user information for its initial training populations and includes several customizable fields that permit employers to run reports that make sense in their environments.

ELT clients also have access to an invaluable resource - ELT's Implementation Managers. Clients are assigned an Implementation Manager to help them implement the course and support them throughout their agreement.

The Regulations require 2 hours of training.

Two hours of sexual harassment training is "two hours of classroom training, or two hours of Webinar training, or in the case of an e-learning program, a program that takes the supervisor no less than two hours to complete."

The Regulations expressly provide, however, that "the training need not be completed in two consecutive hours.... E-learning courses may include bookmarking features."

Timing Options Tailored to Your Workplace. ELT's Workplace Harassment solution easily meets AB 1825's 2-hour mandate.

• Pre-Timed Audio Version. One course option is an enhanced audio version configured to run in no less than 2 hours.
• Timer Feature in Audio or Non-Audio Course. Another option is a timer feature that tracks how long learners have been in the course. Learners who "complete" the course in less than 2 hours are guided to additional content until the 2-hour requirement is satisfied.

Bookmarking

Workplace Harassment also includes a bookmarking feature that allows your supervisors to log out of the training program, and then return to where they left off.

The Regulations specify that the training must extend beyond sexual harassment to other forms of prohibited harassment and require that training provide "practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation."

Training can discuss "how harassment of an employee can cover more than one basis." These basis categories include:

• Race;
• Religious creed;
• Color;
• National origin;
• Ancestry;
• Physical disability;
• Mental disability;
• Medical condition;
• Marital status;
• Sex;
• Age; and
• Sexual orientation.

Discussion of Sexual Harassment and Other forms of Discrimination and Retaliation.

Workplace Harassment focuses on sexual harassment issues but also introduces learners to other forms of discriminatory conduct that often form the basis of claims, and also covers the retaliation prohibition.

Workplace Harassment specially emphasizes "intersectional discrimination," how sexual harassment claims often intersect with claims relating to race, religion, disability and age. Intersectional discrimination has been highlighted by the EEOC in its 2006 Compliance Manual.

Providing supervisors and employees with the broadest possible training, is an efficient use of resources, provides the strongest legal protections and makes plain, common sense:

• California harassment prevention law is not limited to sexual harassment, and requires employers to take "all reasonable steps necessary to prevent discrimination and harassment from occurring." Govt. Code §12940(k).
• Federal law1 strongly encourages mandatory harassment and discrimination training under all of the "protected categories."
• Broad-based harassment and discrimination training makes it easier for employers to meet evolving state and federal requirements.

The Regulations provide specific guidance on the type of training that must be provided. They do not, however, require employers to create a "California-only" training program or bar employers from including California supervisors in a national program that meets AB 1825 standards for rigorous, comprehensive sexual harassment training.

A Consistent, National Training Program

Treating AB 1825's training guidelines as a "California-only" phenomenon may be tempting. However, employers should treat AB1825 as a catalyst for the comprehensive training that is required across your organization.

• Such training is required to meet the federal standards, discussed above.
• Employers may be criticized in court for limiting comprehensive training to California-based supervisors. Imagine savvy plaintiffs' lawyers: 'Why didn't you give the supervisor in this case the same, comprehensive training that you give your California-based supervisors?'
• Employers should, wherever possible, speak with a single voice regarding their harassment policies and programming.