Workplace harassment remains a persistent problem that too often goes unreported. However, efforts of the #MeToo Movement and social media have put the spotlight on the issues of discrimination and harassment. One result of the heightened awareness is the creation of new anti-harassment laws which impact most employers in California. Specifically, SB 1343 dramatically changes the current requirements for sexual harassment training.
Let’s review the highlights of SB 1343
By January 1, 2020, California employers with at least five employees must provide at least two hours of compliant sexual harassment prevention training to all supervisory employees and at least one hour of sexual harassment prevention training to all non-supervisory employees.
Training must be received within six months of when the employee assumes responsibility for their new position.
The training must be provided prior to January 1, 2020 and every two years thereafter.
Temporary or seasonal employees must receive training within 30 calendar days after their hire date or within 100 hours worked if the employee will work for less than six months.
The anti-sexual harassment training may be conducted with other employees, as a group, or individually, and broken up into shorter time segments, as long as the two-hour requirement for supervisory employees and one-hour requirement for non-supervisory employees is reached and the training meets the strict requirements of the law.
The DFEH must develop, obtain, and make available on its website the one-hour and two-hour anti-sexual harassment training courses for supervisory and non-supervisory employees.
There are many legal elements that need to be included in harassment training in 2019 and beyond. In addition to SB 1343, training must include requirements under AB 1825, amended by AB 2053, AB 2055, SB 396, and additional revised FEHA regulations. Training must also be given by a “qualified” trainer and the instruction must include interactive participation with activities to test the understanding of the content learned, hypothetical scenarios, discussions, along with the ability for participants to ask questions.
Many employers are left questioning how they will comply with all these training requirements.
There are a few options to consider when looking at ways to comply with the complex training requirements. You could offer classroom style training, webinar training, online training or a blended approach. What you can’t do to satisfy requirements is simply plop people in front of a video. Ultimately, if you want the training to be effective, you’ll want your sexual harassment training course to be engaging with examples and case studies relevant to your industry.. Here are some factors to consider when choosing the right training approach for your company:
Depending on your company size and your training objectives, it may make sense to provide group training. Classroom training, with an instructor allows participants to fully engage through activities and role playing, and creates a level of comfort that drives dialogue among participants. Group interaction enhances learning by learning from one another as well as from the trainer. The only catch is that the instructor must meet the requirements of a qualified trainer. The group setting also teaches employees how to interact with one another in a professional, productive, cooperative way, which is something that other forms of training often don’t provide. The best trainers will go beyond a cookie cutter approach of presenting the same exact presentation to every audience. They will customize training content to reflect the exact needs of an organization so that attendees can relate to the topics and understand the risks and the realities. The training will cover legal requirements, but also provide learning opportunities that demonstrate how values such as inclusion and a general respect in the workplace easily create a positive work environment. Classroom training can be the best option if you want to create an interactive learning experience where managers and employees can discuss the unique real-life scenarios the company may be faced with. For employers with virtual workforces or with employees who are geographically disperse, classroom training may not be the most cost effective or conducive to learning. And, classroom training with a lot of interaction will likely require more time than the 2 hour or 1 hour legal minimum.
Live webinar training has its advantages especially if employees are in different locations and if the webinar is customized to your industry. Live webinar training is when an internet conference platform is used, and employees log on at the same time. This method provides some interaction; however it is not ideal if you want to create opportunities for employee interaction. For this option to comply with the anti-harassment training, it will be important to find ways to test and receive feedback from your employees during the training and find ways through technology to make it interactive. It is also important to note that it will not meet the standard requirements for your employees to listen to the recorded live webinar by itself. And, of course, the instructor must meet the standards of a qualified trainer. (See below to understand who may be a qualified trainer.)
Online Training (E-learning)
A popular option is online training offered through a 3rd party vendor who has developed compliant on-demand e-learning software for purchase. You purchase seats, enter required information and let the system run its course. Participants can complete training at their convenience, at their own pace, and typically on multiple devices (i.e. tablet, phone, computer), making it a very flexible option, especially considering that employees must receive training within a prescribed timeframe. It’s important to ensure the online training purchased complies with the legal requirements for anti-harassment training and it incorporates ways to test knowledge, hypotheticals, and other ways to engage the participant. Since it’s virtual, there is almost no ability for participants to ask questions or to engage in dialog. Online training may not always be the most effective if you consider the reality that many employees will not give their full attention to the training. They may just “run” through the course or take it in increments. This makeslearning and retention limited except for those who are truly motivated.
Some companies are taking a blended approach by providing classroom style training for managers and elearning for employees.. Other blended approaches include classroom style for all employees as a part of orientation and refresher courses online. Also, consider the idea of breaking up long trainings into impactful chunks of time to keep the engagement high. The blended approach can provide the best of both worlds: in-person opportunities for learning and e-learning for compliance.
On-Going and Future Training
Once you choose a method to comply for this year’s requirements and all your employees have completed training, make sure you consider how you plan to keep up with ongoing and future training needs. You must be able to provide training to new hires and managers that are promoted within 6 months of being in their new position and 2 years thereafter. In addition, temporary or seasonal employees training should be within 30 days or before their first 100 hours worked if they work less then 6 months. Will you offer the same instruction of training (group classroom, webinar or online) every year, or will you offer a blended approach to accommodate the one-off’s? Whatever you choose to do, make sure you follow the records retention and tracking requirements.
In addition to being compliant with the law, there is a very compelling business case for stopping and preventing harassment before it becomes a problem. Workplace harassment not only causes physical, mental and economic pain and suffering to the victims, but it also affects the employer’s bottom line with decreased productivity, turnover, direct costs for legal remedies, workplace disruption, reputational harm and poor morale.
Make sure you that you carefully consider your options for training and that the method that you choose meets your desired objectives. Building your sexual harassment training with the intention of preventing harassment and creating a positive culture, instead of reducing your employer liability can send the right message to your employees. Leadership support and a well-designed training and education program on preventing harassment, discrimination, retaliation will likely result in a more positive and respectful work environment with minimal disruptions.
The HR Manager qualified trainers are available to assist you as you navigate through these complex requirements as you chose the right approach for your company. Should you need any assistance, please feel free to reach out.
What is a Qualified Trainer?
Under the final regulations, qualified trainers can be attorneys, professors or instructors, HR professionals, or harassment prevention consultants. Attorneys must have been admitted to practice in any jurisdiction in the United States for at least two years and have employment law issues related to Title VII of the Civil Rights Act of 1964 or to the FEHA as part of their practices. Professors and educators must have either a postgraduate degree or a California teaching credential and either 20 hours of instruction or two years of experience teaching employment law as it applies to the FEHA or Title VII.
HR professionals or harassment prevention consultants "working as employees or independent contractors must have a minimum of two years of practical experience in one or more of the following:
Designing or conducting discrimination, retaliation and sexual harassment prevention training.
Responding to sexual harassment complaints or other discrimination complaints.
Conducting investigations of sexual harassment complaints.
Advising employers or employees regarding discrimination, retaliation and sexual harassment prevention." (§11024(a))
Individuals who do not meet the qualifications of a trainer as an attorney, HR professional, harassment prevention consultant, professor or instructor because they lack the requisite years of experience may team-teach with a trainer in classroom or webinar settings provided that the trainer supervises these individuals and that the trainer is available throughout the training session to answer questions from attendees.