California employers: We are almost halfway through 2019. Have you planned how you will meet your new sexual harassment prevention training obligations by January 1, 2020?

Existing law has required you to provide at least two hours of sexual harassment prevention training to all supervisors, if you have 50 or more employees. With the new law, SB 1343, the requirements are becoming more stringent, and cover more employees.

Below is a recap of what California employers need to know.

What is SB 1343 and How Does it Affect Employers in California?

You may recall that California passed SB 1343 last year, updating the harassment prevention training requirements. Key provisions include:

Employers with 5 or more employees must provide sexual harassment prevention training to all employees (even nonsupervisory employees) by January 1, 2020.

SB 1343 requires employers with 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisors. In addition, at least one hour of sexual harassment training is required for all non-supervisory employees.

The first round of training must take place by January 1, 2020, and once every 2 years thereafter.

Supervisor harassment prevention training must take place at least every two years.

Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position. All covered employers must provide sexual harassment training and education to each supervisory employee once every two years. Note that in 2015, California required that a portion of the training also address "abusive conduct."

Harassment prevention training must cover specific topics

In order to comply with California law, the training must include the following:

• The definition of sexual harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964.
• The statutes and case-law prohibiting and preventing sexual harassment.
• Types of conduct that can be sexual harassment.
• Remedies available for victims of sexual harassment.
• Strategies to prevent sexual harassment.
• Supervisors' obligation to report harassment.
• Practical examples of harassment.
• The limited confidentiality of the complaint process.
• Resources for victims of sexual harassment, including to whom they should report it.
• How employers must correct harassing behavior.
• What to do if a supervisor is personally accused of harassment.
• The elements of an effective anti-harassment policy and how to use it.
• "Abusive conduct" under Government Code section 12950.1, subdivision (g)(2).
• Discussion of harassment based on gender identity, gender expression, and sexual orientation, which shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.

Employers need an anti-harassment policy with a clear complaint procedure included.

All employers should have an anti-harassment policy of their own developed and distributed to all employees. Employers are required to develop a harassment, discrimination, and retaliation prevention policy that meets the following requirements:

• Is in writing;
• Lists all current protected categories covered under the Act;
• Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act;
• Creates a complaint process to ensure that complaints receive the employer's designation of confidentiality to the extent possible; a timely response; impartial and timely investigations by qualified personnel; documentation and tracking for reasonable progress; appropriate options for remedial actions and resolutions; timely closures.
• Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or a complaint hotline; and/or access to an ombudsperson; and/or identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
• Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
• Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
• States that confidentiality will be kept by the employer to the extent possible, but does not indicate that the investigation will be completely confidential.
• Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
• Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

In addition, employers are required to distribute the pamphlet, Sexual Harassment Is Forbidden by Law (DFEH-185), to all employees.

Harassment prevention trainers must meet certain requirements.

A trainer must be one or more of the following:

1. 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
2. Human resource professionals or harassment prevention consultants working as employees or independent contractors with a minimum of two or more years of 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
3. Professors or 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.

Individuals who do not meet the qualifications of a trainer as an attorney, human resource professional, harassment prevention consultant, professor or instructor because they lack the requisite years of experience may team teach with a trainer, in accordance with 1. through 3. above, in classroom or webinar trainings, provided that the trainer supervises these individuals and the trainer is available throughout the training to answer questions from training attendees.

What Should Employers Do Next?

Large employers will generally find this process easier, since they have already been providing anti-harassment training to their supervisory staff. If you have in-house training, you should already be reviewing and revising what you cover and who attends. You should also review your communications with employees and your complaint procedure.

Smaller employers will do best to consult with their employment law specialist, and may want to bring in an experienced harassment prevention consultant.

At HRSPI we understand the complexities of compliance with California's anti-harassment laws, and how overwhelming they can be for employers. We have comprehensive sexual harassment prevention training programs that we teach in-person, on-site at your location or locations. Our trainings include all of the SB 1343 requirements. Please visit our Sexual Harassment Prevention Training page, or contact us to learn more about how we can help you!

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