Sexual Harassment Training Puerto Rico

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Puerto Rico Sexual Harassment Training, Workplace Harassment, and Bullying Training and Policy Requirements

Puerto Rico recently became the first US jurisdiction to outlaw all workplace bullying and harassment, regardless of whether the behavior relates to a protected characteristic, and to require all employers to adopt policies and employee training to prevent workplace bullying and harassment.

On August 7, 2020, Puerto Rico Governor Wanda Vázquez Garced signed the “Act to Prohibit and Prevent Workplace Harassment in Puerto Rico” into law (90-2020, formerly House Bill 306).

The Act (“APPWH”) applies to all employers and prohibits bullying or harassment of any employee. Importantly, the term “harassment” is not limited to behavior that relates to protected characteristics, such as race, gender, and religion. Instead, harassment is broadly defined to include, for example:

using profanity while making disparaging remarks about an employee,
disparaging and humiliating comments about an employee’s professional qualifications in the presence of others, and
making humiliating comments about an employee’s work proposals or opinions.

To comply with the new law, all employers with employees in Puerto Rico must (a) adopt a policy; (b) post a notice; and (c) provide training on the new prohibition against harassment and bullying.

The Puerto Rico Department of Labor (DOL) has been ordered to develop guidelines on these requirements on or before February 3, 2021. Employers must comply with the new requirements within 180 days after the DOL has issued its regulations.

To help companies prepare for the new legal requirements in Puerto Rico, Clear Law Institute has provided answers to Frequently Asked Questions (FAQs) below. We will update and expand these FAQs when the DOL issues its detailed guidance. To be notified when Puerto Rico issues new guidance, please contact us.

Which employers must train employees under the new Act to Prohibit and Prevent Workplace Harassment in Puerto Rico?

The APPWH requires every employer with at least 1 employee working in Puerto Rico to provided workplace harassment training.

Who must be trained?

All employees must be trained, including short-term employees, part-time employees, and paid interns.

Must independent contractors be trained?

Yes. The Act defines “employee” as any person who provides services to an employer and receives compensation for it and requires the term to be interpreted in the broadest manner to provide the most protection.

Must employers have a harassment prevention policy?

Yes, all employers must establish written harassment prevention policy and complaint procedures.

Other Questions

We expect that the Puerto Rico DOL’s guidelines implementing the new law will address other questions such as the ones below.

What content must be covered in the workplace harassment and bullying training?
When is the training deadline?
Do employees outside Puerto Rico need to be trained?
Do we need to retrain employees who have been trained at other companies?
What documentation about the training must employers maintain?
How often should employees be trained?
When should new employees be trained?
Must the training be accessible to employees with disabilities?
Can I make employees take the training outside of working hours?
Can employees report employers who are not in compliance?
Must employees with multiple employers take the training at each employer?
Can an online harassment course be taken to meet the training requirements under the APPWH?

Why Clear Law Institute?

More than 1,000 employers rely on Clear Law Institute to provide online sexual harassment training to their employees across the country because our training:

Complies with all 50 states’ laws and DC and Puerto Rico law
Is kept up-to-date with any changes in the law at no additional charge
Utilizes cutting-edge instructional design principles and learning games
Efficiently tracks who has and who has not completed the training each year, as handled by Clear Law’s Learning Management System. This prevents employers from having to collect and track certificates manually.

Learn more and view a free course demo now.

About the Author

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. Read more about Michael here.

Who must be trained?

All employees and supervisors based in California must be trained. Employers are not required to train independent contractors, volunteers, or unpaid interns; however, it is recommended that employers do so to ensure a safe work environment for all.

Under California law, employees outside of California are not required to be trained but may be required to be trained based on other states’ laws.

What are the requirements for temporary and seasonal employees?

Temporary and seasonal employees (any employee who works less than six months) are also included in the sexual harassment training requirement, and employers must provide training to them within 100 hours of working or 30 calendar days after hire date, whichever comes first. SB 530 extended the initial training deadline for these workers until January 1, 2021. Additionally, migrant and seasonal agricultural workers must receive the same training as non-supervisory employees. However, employers are not required to train employees who work fewer than 30 calendar days or 100 hours in a year.

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.” 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 law specifies that this training may be completed in shorter segments, and not all at once, as long as the total time requirement is met. E-learning training may use bookmarking features, which allows the employee to pause the training so long as the actual e-learning content meets or exceeds the time requirements.

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 and case law concerning the prohibition against and prevention of sexual harassment
Types of conduct that can be sexual harassment
Remedies and resources available to victims of sexual harassment in employment
Strategies to prevent sexual harassment
Supervisors’ duty to report harassment
The limited confidentiality of the complaint process
Practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation; and
Prevention of abusive conduct for both employees and supervisors
Questions that assess learning hypothetical scenarios about harassment with discussion questions
The employer’s anti-harassment policy, which each employee must acknowledge receipt of and having read.

Additionally, Senate Bill 1300 encourages employers to include bystander intervention training as part of the content. 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 training, entitled Positive Workplace, covers 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.”

In addition, a qualified trainer must be either:

An attorney with at least two years of experience whose practice includes employment law under the Fair Employment and Housing Act (FEHA) or Title VII of the federal Civil Rights Act of 1964
A human resource professional or harassment prevention consultants with at least two years of practical experience in:
- Designing or conducting training on discrimination, retaliation, and sexual harassment prevention;
- Responding to sexual harassment or other discrimination complaints;
- Investigating sexual harassment complaints; or
- Advising employers or employees about discrimination, retaliation, and sexual harassment prevention
An instructor at the collegiate or graduate level with a post-graduate degree or California teaching credential and 20 hours of instruction about employment law under the FEHA or Title VII.

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.

Through knowledge, experience, training, and expertise, a trainer must have the ability to provide training about the following topics:

Definitions of abusive conduct, sexual harassment, gender identity, gender expression, sexual orientation, and other bases listed in the FEHA
Identification of behavior constituting unlawful harassment, discrimination, and/or retaliation under both California and federal law
How to deal with harassing behavior in the workplace
Reporting harassment complaints
Supervisors’ duty to report harassing, discriminatory, or retaliatory behavior they become aware of
Proper response to a harassment complaint
Employer’s obligation to investigate a harassment complaint
What is retaliation and how to prevent it
Essential aspects of an anti-harassment policy
The negative effects of harassment on individuals in the workplace
Practical examples of prevention of harassment, discrimination, and retaliation based on sex, gender identity, gender expression, sexual orientation, and the prevention of abusive conduct

How is “interactive” “e-learning” training defined?

“E-learning” is defined as individualized, interactive, computer-based training created by a trainer and instructional designer with expertise in instructional best practices.

“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.”

To be interactive, the training must allow employees to ask questions of the trainer and have those questions answered. If the employee is taking an online course, the course must include instructions on how to contact a qualified trainer (described above) who can provide expert answers to the questions within two business days. Clear Law Institute has in-house attorneys who answer user questions within one business day as part of its online sexual harassment training.

What are the learning objectives of the training?

California code states that the training shall be designed to:

Assist employers in adapting workplace behaviors that create or contribute to harassment based on sex, gender identity, gender expression, and sexual orientation
Provide employees with information about the negative effects of abusive conduct
Develop, foster, and encourage values in employees who complete the training that will assist them in helping to prevent, respond, and address harassing behavior in the workplace.

Will the state develop training?

Senate Bill 1343 has indicated that the Department of Fair Employment and Housing (DFEH) will, at some point, develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplace and post it on their website. The Department 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. Clear Law Institute’s online sexual harassment training allows employers to track completion electronically in its Learning Management System (LMS), greatly reducing the burden of tracking employee completion internally.

Does my organization have to use the DFEH training?

Employers can provide the DFEH training, once released, or develop their own training consistent with the minimum training standards. Indeed, the bill explicitly states that the DFEH 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 to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.”

Many employers turn to expert providers of sexual harassment training such as Clear Law Institute:

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 one business day by a Clear Law Institute attorney.
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 (LMS), instead of having to collect and track certificates.
To have their online training provider handle all technical support calls from their employees. Clear Law Institute is the only provider we are aware of that provides end-user technical support.

Do employees or supervisors who have been trained at another employer need to retake the training?

If an employee or supervisor took compliant training within the past two years, they do not need to retake the training. However, the new employer must give them the employer’s anti-harassment policy, require them to read it, and require them to acknowledge receipt of the policy. This must occur within six months of hire (or within six months of promotion in the case of supervisors). It is the employer’s responsibility to ensure that the training each employee took complies with all of the various state training requirements. Most employers find it easier to have employees and supervisors retake the training provided by their organization to ensure compliance.

When will I need to retrain employees if I’ve already trained them?

Employers may use a “training year” cycle to train employees. Retraining would then be required by the end of the next training year, two years later. For example, if an employer trains employees in 2020, employees will need to be retrained by the end of 2022. For new employees and promoted supervisors who receive training within six months of hire/promotion, the employer should include them in the next group training year, even if that is less than two years later. An employer may not extend the training year for the new employees and new supervisors beyond the two-year training year.

What documentation must an employer keep regarding the training?

Employers must keep documentation of the training provided to employees and supervisors for at least two years. This documentation includes but is not limited to:

Names of the employees trained
The date of training
A sign in sheet
A copy of all certificates of attendance or completion issued
The type of training
A copy of all materials (written or recorded) that comprise the training
The name of the training provider.

This documentation should be kept on the employer’s premises. It is not required to be sent to the DFEH.

Do employers have to pay employees for the training time?

Yes, employees must be paid for the training time. The law states that the employer “shall provide…” sexual harassment and abusive conduct training. The training is the employer’s responsibility, not the employee’s responsibility, and the DFEH can seek a court order to compel the employer to provide the training. The language requires that the training be provided as part of an individual’s employment; employees may not be required to take the training during their personal time. Because it is the employer’s responsibility to provide the training, it is also the employer’s responsibility to pay any costs incurred in providing the training.

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 over 800 clients sleep well knowing that we constantly 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 numerous times in the last few years to comply with new state and local training laws. Importantly, Clear Law does not charge its clients to update 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 a reference to transgender rights. The California Department of Fair Employment and Housing (DFEH) 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 DFEH 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:

The definition and illegality of sexual harassment
A description of sexual harassment, utilizing examples
The employer’s internal complaint process that is available to employees
Legal remedies and complaint process available through the California Department of Fair Employment and Housing (DFEH)
Directions on how to contact the DFEH
The protection against retaliation
A link to, or website, for the sexual harassment online training course as developed by the DFEH

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

Effective January 1, 2019, Senate Bill 1300 expanded harassment protection and liability under the Fair Employment and Housing Act (FEHA) 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)

Effective January 1, 2019, Senate Bill 1300 made 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 rejected 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 prohibits and voids 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 that should be trained?
- Review your policies, arbitration agreements, and NDA’s.
  - Update your existing harassment policy 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 one business days by Clear Law or a client official.]
  - Train all covered employees and supervisors before January 1, 2021.

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, Positive Workplace, is used by hundreds of employers across the nation, including several Fortune 500 companies. Learn more about Positive Workplace and view a free course demo.

About the Author

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Clear Law Institute, LLC

Wednesday 16 September 2020