Clear Law Institute, LLC: California law now requires sexual harassment training for all employees

California law now requires sexual harassment training for all employees

California state law now requires employers with at least five employees to provide sexual harassment training every two years for all employees located in California. Since 2005, California law AB 1825 has required employers with 50 or more employees to provide sexual harassment training for supervisors in California. Senate Bill 1343, which was signed into law on September 30, 2018, expands the requirement to require employers with at least 5 employees to train all employees. SB 1343 also provides guidance on the content and length of the training that must be provided.

When is the deadline to provide the sexual harassment training?

By January 1, 2020, all required employees and supervisors based in California must have completed interactive training and education regarding sexual harassment. An employer having five or more employees based in California must provide at least two hours of effective interactive training to all supervisory employees and at least one hour of effective interactive training to all nonsupervisory employees.

By when must new employees be trained?

Training must be provided within six months of hire for new employees, and supervisors must be trained within six months of obtaining a supervisory position. Training is required every two years after the initial training date. If an employer provided training to an employee after January 1, 2019, training is not required again until 2021, and then every two years after.

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Which employers are subject to these requirements?

Senate Bill 1343 defines employers who must comply with these training requirements as “any person regularly employing five or more persons, or regularly receiving the services of five or more persons providing services pursuant to a contract, or any person acting an agent of an employer, directly, or indirectly, the state, or any political or civil subdivision of the state, and cities.”

Who must be trained?

All employees and supervisors based in California must be trained. Temporary and seasonal employees (any employee who works less than 6 months) are also included in this training requirement, and employers must provide training to them within 100 hours of working or 30 calendar days after hire date, whichever comes first. Additionally, migrant and seasonal agricultural workers must receive the same training as non-supervisory employees. Temporary employees, as employed by a temporary services employer to perform services for a client, must receive training from the temporary services employer, not the client.

How long must the training be?

As mandated by AB 1825, supervisors must continue to receive “at least two hours of classroom or other effective interactive training and education regarding sexual harassment” for supervisors. SB 1343 requires that training for non-supervisors be one hour in length.

For both supervisors and employees, training may be completed individually online, or as part of a group presentation. Additionally, the bill specifies that this training may be completed in shorter segments, and not all at once, as long as the total hour requirement is met.

What must be included in the content of the training?

Senate Bill 1343 incorporates and adds to the training content requirements of previous California laws, such as the AB 1825 sexual harassment training law, the AB 2053 anti-bullying training law, and the SB 396 gender identity, gender expression, and sexual orientation harassment training law. Now employers must ensure that the training provided to California-based employees covers, among other things:

Federal and state statutory provisions concerning the prohibition against and prevention of sexual harassment
Remedies available to victims of sexual harassment in employment
Practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation; and
Prevention of abusive conduct for both employees and supervisors

Additionally, Senate Bill 1300 encourages employers to include bystander intervention training as part of the training. Specifically, employers are encouraged to provide all employees with bystander intervention training that provides practical guidance on how to enable bystanders to recognize and take action when they observe problematic behaviors. This training is in an effort to provide bystanders with the skills and confidence to intervene, or the resources to support if they are unable to intervene. Clear Law Institute’s online sexual harassment training courses cover not just sexual harassment, but all forms of harassment, discrimination, and retaliation. The training also addresses Bystander Intervention, workplace civility, and bullying.

Who can present the training?

Senate Bill 1343 emphasizes that the training “shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.” Unlike most training providers, Clear Law Institute has in-house legal expertise that ensures that the training is legally accurate when produced and kept up-to-date with any changes in the laws.

How is “interactive” training defined?

“Interactive” training is defined in Senate Bill 1343 as training that has an “interactive feature that requires viewers to respond to questions periodically throughout the training in order for the online training courses to play.”

Also, the training must allow for employees to ask questions and have those questions answered. If the employees is taking an online course, previous guidance implementing AB 1825 indicated that questions must be answered within two business days. Clear Law Institute offers to answer user questions as part of its online sexual harassment training.

Will the State develop training?

Senate Bill 1343 has indicated that the Department of Fair Employment and Housing will, at some point, develop or obtain 1-hour and 2-hour online training courses on prevention of sexual harassment in the workplace and post it on their website. The Departement is also required to “make existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers in specified alternate languages on the department’s Internet Web site”. It is not stated when these will be available.

Per the bill’s requirements, the Department will provide a method for employees who have completed the training to save electronically and print the certificate of completion. [Notably, Clear Law Institute’s online sexual harassment training allows employers to track completion electronically in its Learning Management System, greatly reducing the burden of tracking employee completion internally.]

Does my organization have to use the Department’s training?

Employers can provide the Department’s training, once released, or develop their own consistent with the minimum training standards. Indeed, the bill explicitly states that the Department’s training is intended to establish a “minimum threshold, and should not discourage or relieve any employer from providing longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.”

Many employers will likely turn to expert providers of sexual harassment training:

To provide comprehensive instruction on the topic.
To ensure that the training complies with all 50 states’ requirements, not just the requirements of California.
To ensure that the training provides legally accurate guidance. If an employer were to provide in-person training following California’s minimum training, for example, the trainer may not have the expertise to facilitate the training and accurately answer questions.
To provide employees with “best-in-class” instruction that utilizes cutting-edge instructional design principles to help improve employees’ understanding of the principles taught.
To be able to answer questions from users (as required to meet the “interactivity” requirement). Users of Clear Law’s online sexual harassment training can ask questions and have those questions answered within two business days by a Clear Law Institute lawyer.
To be able to efficiently track who has and who has not completed the training each year, which can be handled by a modern Learning Management System, instead of having to collect and track certificates.
To have their online training provider handle all technical support calls from their employees.

What if the law changes and my organization’s training courses need to be updated?

While many providers offer training on preventing workplace harassment, few have the legal and instructional design expertise required to comply with certain harassment training laws, such as those in California. Clear Law Institute’s hundreds of clients can sleep well knowing that we monitor laws around the country to ensure that our training stays up-to-date with changes in the law. Indeed, we have updated our harassment course three times in the last three years to comply with new training laws.

Clear Law Institute’s California sexual harassment training is ready to be delivered to your employees. If needed, Clear Law will modify its courses to comply with any changes in California’s laws. Importantly, Clear Law does not charge its clients to update its course content due to changes in the law.

What other updates should my organization be aware of?

Poster Requirement in the Workplace (Senate Bill 1343):

Employers are required to post a poster detailing discrimination in the workplace and the illegality of sexual harassment in a “prominent and accessible location in the workplace.” This poster must also include reference to transgender rights. The CA Department of Fair Employment and Housing will develop this poster, and will provide one copy to an employer or member of the public, upon request. This poster can be mailed if the request includes a self-addressed envelope with postage affixed.

Information Sheet Distributed to Employees (Senate Bill 1343)

The Department will make available to employers an information sheet on sexual harassment, to be reproduced and distributed to employees “in a manner that ensures distribution to each employee, such as including the information sheet with an employee’s pay”. One copy will be provided to the employer or member of the public upon request, and can be mailed if the request includes a self-addressed envelope with postage affixed. Employers must distribute this information sheet to all employees, unless an equivalent information sheet contains at minimum the following:

Definition and illegality of sexual harassment
Description of sexual harassment, utilizing examples
Internal employer complaint process that is available to employees
Legal remedies and complaint process available through the CA Department of Fair Employment and Housing
Directions on how to contact the CA Department of Fair Employment and Housing
Protection against retaliation
Link to, or website, for the sexual harassment online training course as developed by the Department

Employer Liability for Acts of Harassment by Non-Employees (Senate Bill 1300)

Beginning January 1, 2019, Senate Bill 1300 expands harassment protection and liability under the Fair Employment and Housing Act by mandating that an employer may now be responsible for any acts of harassment (not just sexual harassment, as previously defined) by non-employees, against employees and other non-employees, including interns, volunteers, and contractors.

Release or Non-Disparagement Agreements (Senate Bill 1300)

Beginning January 1, 2019, Senate Bill 1300 makes it unlawful for employers to require an employee to sign a release or non-disparagement agreement or document that denies the employee’s right to file and pursue civil action, or disclose information about all unlawful acts in the workplace, including all forms of harassment.

Liability for a Single Incident of Harassment (Senate Bill 1300)

Senate Bill 1300 rejects the former “stray mark” doctrine previously determining what conduct may be sufficiently severe or pervasive to constitute a violation [opinion of the U.S. Court of Appeals for the Ninth Circuit in Brooks v. City of San Mateo, 229 F.3d 917 (2000)]. Instead, establishing that one can be held liable for even one comment as the bill states that “a single incident of harassment is sufficient to create a triable issue of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”

NDA’s Prohibited in Harassment Claims (Senate Bill 820)

For settlement agreements entered into on or after January 1, 2019, Senate Bill 820 will prohibit and void non-disclosure provisions in sexual harassment, workplace harassment, or sex discrimination claims. Senate Bill 820 provides, however, that a claimant may request to shield their identity (including facts that could reveal their identity) and preclude the disclosure of the amount paid in settlement, if the claimant has requested anonymity and the opposing party is not a public official or government agency.

What should employers do now?

Employers should take the following steps:

Determine if the California laws apply to your organization.
- Do you have 5 or more employees?
- Do you regularly receive services via contract from 5 or more persons?
  - If answering yes to either questions: Do you have employees and/or supervisors working in California?
- Review your policies, arbitration agreements, and NDA’s.
  - Update your existing harassment p\\cy to meet the requirements of the updated California laws.
  - Review your current NDA’s with employees.
- Training
  - Ensure that your harassment training is updated to address the new content requirements of the California laws. [Clear Law Institute offers online sexual harassment training that covers the one-hour employee and two-hour supervisor training requirements.]
  - If using online training, determine who will answer questions submitted by users. [Users of Clear Law’s online sexual harassment training can ask questions and have those questions answered within two business days by Clear Law or a client official.]
  - Train all covered employees and supervisors before January 1, 2020.

Where can I learn more?

Clear Law Institute continually monitors updates to federal and state laws to ensure that its online training is legally accurate and up-to-date. Clear Law Institute’s online course, Preventing Workplace Harassment, is used by hundreds of employers across the nation, including several Fortune 500 companies. Learn more about Preventing Workplace Harassment and view a free course demo.

New York City has indicated that it will, at some point, create a model training that can be used by employers in New York City. New York State has developed a model training document that can be followed by employers to provide their employees with training. However, most employers likely will provide their own training by either creating an in-house training or turning to a third-party with expertise in training on sexual harassment prevention. Indeed, the New York City law explicitly states that its model training is designed to be a minimum threshold. Many employers will likely turn to expert providers of sexual harassment training:

To provide comprehensive instruction on the topic. For example, the NYC law requires employers who will use its model training to separately instruct all employees on the employer’s internal complaint process for addressing sexual harassment claims.
To ensure that the training complies with all 50 states’ requirements, not just the requirements of the State of New York and New York City.
To ensure that the training provides legally accurate guidance. If an employer were to provide in-person training following New York State’s training script, for example, the trainer may not have the expertise to facilitate the training and accurately answer questions.
To provide employees with “best-in-class” instruction that utilizes cutting-edge instructional design principles to help improve employees’ understanding of the principles taught.
To be able to answer questions from users (as required to meet the “interactivity” requirement). Users of Clear Law’s online training can ask questions and have those questions answered within two business days by Clear Law or a client official.
To be able to efficiently track who has and who has not completed the training each year, which can be handled by a modern Learning Management System.
To have their online training provider handle all technical support calls from their employees.

Clear Law Institute will Update its Harassment Training at NO COST

Clear Law Institute’s New York sexual harassment training is now ready to be delivered to your employees. If needed, Clear Law will modify its courses to comply with any changes in New York State or New York City laws. Importantly, Clear Law does not charge its clients to update its course content due to changes in the law.

Other Provisions of the New York State and City Sexual Harassment Laws

Limitations on Non-Disclosure Agreements. Effective July 11, 2018, New York State prohibits the use of a nondisclosure agreement (“NDA”) as part of the settlement of a sexual harassment claim, where the NDA would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment. An NDA is prohibited unless the complainant prefers such a provision. If the complainant indicates that he or she prefers an NDA, the employer must give the complainant 21 days to consider the NDA, and then memorialize the complainant’s preference for an NDA in writing, signed by all parties. The complainant then has an additional 7 days to revoke the preference for an NDA. The NY State law requires that the 21-day consideration period expire (and cannot be waived or shortened) before the complainant’s preference can be memorialized, and the minimum 7-day revocation period cannot start until after.

Limitations on Arbitration Agreements. New York State now prohibits employers from requiring employees to arbitrate sexual harassment claims, unless the arbitration agreement is part of a collective bargaining agreement. (This provision of the law may be challenged under the Federal Arbitration Act.)

Model Sexual Harassment Policy. As required by the New York State law, the New York State Department of Labor has developed a “model” sexual harassment prevention policy that includes a standard complaint form and a procedure for the “investigation of complaints” that ensures “due process for all parties.” Employers may either adopt this policy as their own or ensure that their policy includes all the mandated elements. According to the NY State final guidance, employers should distribute the policy to employees prior to beginning work. Employers must provide the policy to all employees in writing or electronically. If a copy is made available on a work computer, employees must be able to print a copy for their own records. Employers are not required to collect a signed acknowledgment of employees having read the policy, but employers are encouraged to keep a signed acknowledgment. Employers should also post copies of the sexual harassment policy in the workplace.

Coverage Expanded. The New York State law also expands protection under the New York State Human Rights Law for non-employees, specifically noting that that an employer may be liable for sexual harassment of contractors, subcontractors, vendors, and consultants where the employer knows, or should know, that harassment is occurring in its workplace and fails to take immediate and appropriate corrective action to stop the offending conduct. Given this, employers will want to ensure that their training addresses the prevention and reporting of harassment of such non-employees. In addition, employers may be wise to offer their harassment prevention training to non-employees, especially contractors, subcontractors, and consultants.

At the New York City level, the Stop Sexual Harassment in NYC Act has modified the New York City Human Rights Law (NYCHRL) to now cover employers with fewer than 4 employees for sexual harassment claims.

Posting Requirements. The NYC Commission on Human Rights has created a poster and information “fact sheet.” As of September 9, 2018, all employers in NYC must post an anti-sexual harassment rights and responsibilities poster in English and Spanish and provide an information fact sheet on sexual harassment to each employee at the time of hire (which can be included in an employee handbook). To receive a copy of the posters and fact sheets, please contact us. The New York State sexual harassment policy indicates that employers must post their sexual harassment policy “prominently in all work locations and be provided to employees upon hiring.”

What to Do Now

Employers should take the following steps:

Determine if the New York State and NYC laws apply to your organization.
- Do you have any employees working in New York or New York City?
- Does your organization bid, or plan to bid, on a New York state or NYC contract?
Review your policies, arbitration agreements, and NDA’s.
- Update your existing harassment policy to meet the requirements of the New York State and NYC laws.
- Review your current arbitration agreements and NDA’s with employees.
Posting
- Comply with poster and “fact sheet” requirements.
Training
- Ensure that your harassment training is updated to address the new content requirements of the New York State and NYC laws. Clear Law Institute offers one course that covers the requirements of both the NY State and City laws.
- Insert your updated policy in your harassment training course.
- Ensure that you provide instruction on your internal policies for receiving and investigating complaints.
- If using online training, determine who will answer questions submitted by users. (Clear Law offers to answer questions on behalf of its clients.)
- Train all covered employees before October 9, 2019.

Remember to review the tables above on the training obligations and training content requirements.

Learn More

Clear Law Institute continually monitors updates to federal and state laws to ensure that its online training is legally accurate and up-to-date. Clear Law Institute’s online course, Preventing Workplace Harassment, is used by hundreds of employers across the nation, including several Fortune 500 companies. Learn more about Preventing Workplace Harassment and view a free course demo.

* Michael Johnson, CEO of Clear Law Institute, is a former U.S. Department of Justice attorney who brought one of DOJ’s first “pattern or practice” sexual harassment cases. He has provided training and consulting on harassment prevention or investigations to organizations around the world, such as the EEOC, the United Nations, and Google. He is a graduate of Duke University and Harvard Law School.

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