DFEH Provides Guidance on Impact of New SB 1343 Harassment Training Requirements: Some Questions Answered, Many Still Remain – Including Possibility that ALL Supervisory and Nonsupervisory Employees Need to Be Trained or Retrained Again in 2019

Category: Private Education Matters
Date: Dec 28, 2018 02:12 PM

Since 2005, Assembly Bill 1825 has required that private sector employers (including private schools and universities) with 50 or more employees provide two hours of sexual harassment training to supervisory employers within six months of assuming a supervisory position and again at least every two years.  This has commonly been referred to as “AB 1825” supervisor harassment training and is codified under Government Code section 12950.1 and interpreted in the Department of Fair Employment and Housing’s (DFEH) regulations at 2 C.C.R. § 11024.

As part of the 2018 Legislative Session, Governor Jerry Brown signed into law Senate Bill 1343, which expands existing harassment training requirements to lower the threshold down to 5 or more employees and to mandate one hour of harassment training for nonsupervisory employees.  While the law becomes effective January 1, 2019, it requires most existing nonsupervisory employees to undergo harassment training by January 1, 2020.  In the case of temporary and seasonal employees, such training must be provided within certain timelines after January 1, 2020.  To assist employers in satisfying this obligation, SB 1343 also directs the DFEH to develop and make available two interactive, online training courses – a two-hour training for supervisory employees and a one-hour training for nonsupervisory employees.

While on the surface, SB 1343 appears to simply expand mandated harassment training requirements to include all nonsupervisory employees, the implementation of this new law has raised a number of questions for employers.  Among them, how employers can administer a training program that will comply with the new requirement and whether any previous mandated or optional harassment training provided to employees will satisfy this new law.

On November 26, 2018, the DFEH announced a new online resources page for employers (https://bit.ly/2DZA1oG), which includes information on required postings and other tools for addressing California’s discrimination and harassment laws.  Also included is a “Sexual Harassment Prevention Training and SB 1343 FAQ” to assist with SB 1343 compliance.

While the DFEH’s SB 1343 FAQ sheet addresses some interpretation questions, it leaves many questions unanswered.  In addition, the DFEH’s SB 1343 FAQ sheet implies that all supervisory employees (with the exception of temporary or seasonal employees) will need to be trained or retrained in 2019, regardless of whether they were provided compliant harassment training in 2018.

Responding to some common questions, below is our understanding of the law as written and initially interpreted by the DFEH in its SB 1343 FAQ sheet:

Who is now required to undergo harassment training under SB 1343?

Under SB 1343, most California employees must undergo harassment training. Supervisory employees who have already been covered by AB 1825 harassment training requirements must continue to receive at least two hours of harassment training within six months of becoming a supervisor, and at least every two years thereafter.  Nonsupervisory employees now must receive at least one hour of harassment training within six months of hire and at least every two years thereafter. 

Seasonal and temporary employees, or “any employee that is hired to work for less than six months” are required to undergo the applicable supervisory or nonsupervisory training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first.  SB 1343 clarifies that temporary employees provided by an outside temporary services employer (e.g., temp agency) must be provided any applicable harassment training by that temporary services employer.

When will the DFEH issue the online interactive training courses to comply with SB 1343?

SB 1343 requires the DFEH to develop and make available to employers on its website online, interactive training courses that satisfy the two-hour supervisory and one-hour nonsupervisory training requirements.  However, the DFEH’s SB 1343 FAQ sheet indicates that the DFEH expects to have these courses available by “late 2019”, and it does not provide a more specific date for the release of the online training materials.

In the meantime, the DFEH has issued a “toolkit” for sexual harassment prevention, which includes a sample training presentation that employers may use in conjunction with a qualified trainer, as defined in the existing DFEH regulations at 2 C.C.R. § 11024. b">

In short, compliance with SB 1343’s training requirements in the calendar year 2019 may either have to wait until “late 2019” for the DFEH to provide its materials or utilize sooner alternate sources.

What is the difference between the one-hour nonsupervisory harassment training and the two-hour supervisory harassment training required under SB 1343?

Other than the shorter training time, SB 1343 does not specify how the new one-hour harassment training for nonsupervisory employees should differ from the existing two-hour harassment training for supervisory employees. 

The required content in the existing two-hour AB 1825 supervisory harassment training – including requirements specific to supervisory employees – is set forth in the DFEH’s regulations at 2 C.C.R. § 11024.  The DFEH’s SB 1343 FAQ sheet references these existing regulations but does not note that the regulations have not been revised relative to SB 1343.  It is likely that future DFEH rulemaking will result in revised regulations, but no regulatory changes have been proposed at this time, and the DFEH has not announced a timeline for any such changes.  Absent further clarification from the DFEH, the only insight into what content is required in the new one-hour nonsupervisory harassment training will be the DFEH’s own online training course, which is scheduled to be released in “late 2019” as mentioned above.

At this time, we recommend modeling the one-hour training for nonsupervisory employees closely after the existing DFEH regulations for AB 1825 supervisor training at 2 C.C.R. § 11024.  However, where the existing regulations are specific to supervisory employees, we believe such content would not need to be included in a nonsupervisory employee training.

When is the deadline to provide harassment training to employees under SB 1343?

SB 1343 requires that supervisory and nonsupervisory employees of private sector employers with 5 or more employees receive the harassment training between January 1, 2019, and January 1, 2020.  After the initial training, follow-up training must be provided to employees every two years thereafter.  In addition, any new supervisory or nonsupervisory employees who assume such positions on or after January 1, 2019, are required to undergo their initial harassment training within six months of assuming such a position.

The only exception to this rule applies to seasonal and temporary employees who are hired to work for less than six months – the obligation to provide training to such employees does not become effective until January 1, 2020.  On or after that date, SB 1343 requires the employer to provide training to seasonal or temporary employees hired to work less than six months within 30 calendar days from the date of hire, or before the employee reaches 100 hours worked, whichever comes first.

If my school already provided the required AB 1825 supervisory employee harassment training in the calendar year 2018 as part of their two-year training track in accordance with existing law, does SB 1343 require us to retrain those employees again in 2019?

Based on the DFEH’s SB 1343 FAQ sheet, the answer appears to be “Yes”.  SB 1343 amends Government Code section 12950.1(a) to add the following new sentence:

An employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by January 1, 2020, deadline.

Practically speaking, this new sentence is awkward in its application.  If an employer that is required to provide the applicable harassment training by January 1, 2020, provides such training after January 1, 2019, that employer would then not be required to provide the training by the January 1, 2020 deadline.  This sentence would probably make more sense if the initial date referenced was January 1, 2018, and not January 1, 2019.  Therefore, it is not clear if this language was intentional or a clerical error on the part of the Legislature.

More importantly, this new sentence in Section 12950.1(a) does not distinguish between existing AB 1825 supervisory training that employers are already mandated to provide every two years and the new SB 1343 nonsupervisory training.  As a result, a possible interpretation of Section 12950.1(a) is that employers who provided the required supervisory training in the calendar year 2018 believing such supervisory employees would not need to be trained again until the calendar year 2020 would now have to retrain the same employees a year earlier in the calendar year 2019.  

The DFEH’s SB 1343 FAQ sheet appears to follow this interpretation that ALL supervisory and nonsupervisory employees (except temporary or seasonal employees) be trained or retrained in the calendar year 2019, regardless of whether they were otherwise previously provided harassment training in the calendar year 2018 in accordance with existing law.  As noted in the DFEH’s SB 1343 FAQ sheet:

What if my employees were trained between January 1 and December 31, 2018?

The law requires that employees be trained during the calendar year 2019.  Employees who were trained in 2018 or before will need to be retrained.

As a result of this initial interpretation from the DFEH, some employers who provided the required every-two-year supervisory training in the calendar year 2018 may now have to provide the training again, one year sooner in the calendar year 2019.

While this is the DFEH’s initial interpretation of SB 1343, we believe there is a strong possibility the DFEH will either provide additional clarification or the Legislature may provide clean-up legislation to address this scenario. 

Keep in mind that nothing in SB 1343 changes the existing two-hour harassment training requirements for supervisory employees.  To require supervisory employees who were provided the required harassment training in the calendar year 2018 to be retrained a year early does not seem necessary or consistent with the intent of the original law, in addition to creating additional expense and operational impacts to the affected employees.  Therefore, schools who have supervisory employees who were trained in the calendar year 2018 may want to wait and see if the DFEH or Legislature provides clarification on the impact of SB 1343 before scheduling affected employees for retraining in the calendar year 2019.

My school has already been providing harassment training to nonsupervisory employees.  Are we already in compliance with SB 1343?  When do we have to train these employees again?

This is also an issue that is not entirely clear under SB 1343’s bill language and the DFEH’s interpretation of the new law.  Prior to SB 1343, many employers voluntarily chose to require nonsupervisory employees to attend harassment training.  In many instances, employers had nonsupervisory employees attend the same AB 1825-compliant, supervisor training. 

However, as noted above, SB 1343’s bill language and modifications to Government Code section 12950.1 do not provide any indication of what type of training will satisfy the obligations of the new non-supervisor training.  It would seem reasonable that any harassment training provided to nonsupervisory employees prior to SB 1343 that is otherwise in compliance with existing DFEH regulations at 2 C.C.R. § 11024 would be compliant with this new law. However, this is not entirely clear based on SB 1343’s statutory language. 

Furthermore, as noted above, to the extent any such compliant harassment training was provided to nonsupervisory employees in the calendar year 2018 or before, it appears that the DFEH’s initial interpretation of SB 1343 requires that all nonsupervisory employees be retrained in the calendar year 2019.  Absent further clarification from the DFEH or the Legislature, it appears that any previous harassment training provided to nonsupervisory employees will not satisfy SB 1343’s requirements, and such employees should be retrained in the calendar year 2019.

My school has new employees who were provided SB 1343 compliant harassment training at their previous employment.  Does our school need to provide them with harassment training again?  What about seasonal and temporary employees who return to our school each year and were previously provided harassment training?  Does our school have to provide them with harassment training each time they are re-hired as a seasonal or temporary employee?

This is another question that is not entirely clear based on SB 1343’s statutory language.  However, existing DFEH regulations regarding supervisory employees who were previously trained provides some guidance that may be extended to these other scenarios.  As noted under 2 C.C.R. § 11024(b)(5):

(5) Duplicate Training.  A supervisor who has received training in compliance with this section within the prior two years either from a current, a prior, an alternate or a joint employer need only be given, be required to read and to acknowledge receipt of, the employer’s anti-harassment policy within six months of assuming the supervisor’s new supervisory position or within six months of the employer’s eligibility.  That supervisor shall otherwise be put on a two-year tracking schedule based on the supervisor’s last training.  The burden of establishing that the prior training was legally compliant with this section shall be on the current employer.

Since the DFEH’s SB 1343 FAQ sheet references and incorporates these existing regulations, there is a strong argument that 2 C.C.R § 11024 (b)(5) would also apply to new employees who were trained previously or to previous seasonal or temporary employees who were trained at previous employment within the past two years.  In such a scenario, the employer would need to provide the affected employee a copy of the employer’s anti-harassment policy and then ensure that any follow-up harassment training is provided otherwise in accordance with the law.  Nonetheless, we caution employers to await further clarification on this issue from the DFEH.

In conclusion, there is a lot about the application of SB 1343’s new harassment training requirements that remain to be settled.  While the DFEH’s SB 1343 FAQ sheet provides some guidance, it appears that many unanswered questions remain.  LCW is actively working to seek clarification from the DFEH and the Legislature and will provide further updates as the information becomes available. 

In the meantime, LCW offers both supervisory and nonsupervisory harassment training that are compliant with SB 1343.  For more information on our training programs, contact our Training Coordinator Anna Sanzone-Ortiz at asanzone@lcwlegal.com or (310) 981-2051 or Director of Marketing and Training Cynthia Weldon at cweldon@lcwlegal.com or (310) 981-2000.

If you have any questions about this Special Bulletin, please contact attorneys in our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego offices for further guidance.

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Please contact Cynthia Weldon, Director of Marketing & Training, 800.981.2000.