New England Biz Law Update
California has cast a wide net with a recent law mandating sexual harassment training, and employment attorneys across the country need to pay attention.
A handful of states require some form of training, but the new California law covers any company with 50 employees if at least one supervisor is based in California, which means companies nationwide could be affected, employment attorney Michael Lotito said.
“I see a lot of surprised faces and startled looks,” when speaking to lawyers outside of California about the law, Lotito said. “[For] an employment attorney or in-house counsel with operations in California, it’s important to take the time to read the statute and the regulations to ensure that your organization is taking the appropriate steps to comply.”
While the statute was enacted just over a year ago, new regulations went into effect Feb. 1 clarifying several points about the law – from the “interactivity” requirements of training to the applicability to remote supervisors.
William E. Hannum, III, an employment attorney in Andover, Mass., said he became aware of the statute because many of his Massachusetts high-tech clients have offices in California. He believes it’s important for employers to take action.
“There are two reasons to do training: To do the right thing and prevent harassment from happening, and to prepare for litigation,” Hannum said. “That way, an employer can say that it made a reasonable effort and followed the best practices.”
Helene Wasserman, an employment attorney with Ford & Harrison in Los Angeles, agreed that employers should be proactive.
“I like to be able to tell a jury my client takes the issue of sexual harassment very seriously and not only follows the regulations, but goes above and beyond,” Wasserman said.
Specific requirements
Just two other states, Connecticut and Maine, mandate sexual harassment training across the board. Florida, Illinois, Pennsylvania, Texas and Utah require training for state employees only.
The California legislation is fairly detailed in its requirements, but that specificity can offer useful guidance for companies even outside of the state, Hannum noted.
“Most companies want to have consistent employee training,” he said. “So, if this how employees in California must be trained, it makes sense to train the others the same way.”
Here’s a look at the statute’s details:
Who is covered?
Anyone in a supervisory position in the state of California must receive training within six months of being hired or promoted. The new regulations clarify that supervisors located outside of the state are not required to be trained. However, if any supervisor is in California – even if the other 50 employees are located elsewhere in the country – he or she is covered and must be trained.
What training is required?
The law requires at least two hours of “classroom or other effective interactive training and education regarding sexual harassment.” Training must be repeated once every two years.
What topics are covered?
Jennifer Berman, the managing director of CBIZ HR Advisory & Training Services in Chicago, which provides HR consulting services, said the training must encompass 12 main topics.
“Trainers should explain what constitutes unlawful harassment, what steps to take to prevent it, what a supervisor needs to do if it occurs, what the reporting process is for complaints and how the response to the filing of a complain works,” she said.
In addition, trainers will need to describe what the employer’s obligations are in conducting an investigation as well as explain what retaliation is and how it should be prevented. Finally, the training should include a review of the company’s anti-harassment policy and a discussion of the effects of harassment on employees.
What are the “interactivity” requirements?
The new regulations clarify the statute’s “interactivity” requirements. Live training sessions obviously meet this standard, but the regulations make clear that webinars and online training programs are also acceptable.
Berman said the key is being able to document and demonstrate that each attendee was accounted for throughout the program.
“We have a program where we present various hypotheticals and ask questions about them in a quiz format,” she said. “For those people who aren’t present, they e-mail answers to the questions and then we can track to make sure they actually responded.” Importantly, these Q-and-As are scattered throughout the training period, which ensures that the company can document someone’s attendance throughout. And the program allows for remote students to ask questions or make comments by e-mailing the teacher during the training session.
The new regulations also allow for pre-recorded sessions as long as the instructor responds to feedback – questions or comments from the students – within 48 hours.
Who can train?
The training instructor must be a “subject matter expert” to be a “qualified trainer.” The terms are defined in the statute, but essentially require legal education coupled with practical experience, Wasserman explained. While the regulations don’t mandate certification or a law degree to become a qualified trainer, the instructor must be able to explain the legal topics covered during the training session and answer questions from the students.
Wasserman also cautioned that the adequacy of training could be an issue in later litigation.
“I can see a situation where the issue could come up in the context of a sexual harassment claim. A plaintiff could make an argument about the adequacy of training and whether the statute was followed correctly,” she predicted.
Lotito noted that offering training in other languages might be necessary for employers with a staff that speaks English as a second language.
And trainers should also be prepared to deal with cultural differences, he added.
‘Foolhardy’ not to train
At the end of day, while only a handful of states legally mandate sexual harassment training, employment lawyers agree the California statute should encourage all employers to take precautions.
Berman pointed to two 1998 U.S. Supreme Court opinions that established employers can minimize or avoid liability if they conduct supervisory training. (Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, and Faragher v. City of Boca Raton, 524 U.S. 775.)
“It would be very foolhardy not to be able to demonstrate that supervisors were given the appropriate training that would support an affirmative defense down the road and save potential litigation costs,” she said.
“The more training, the better,” Wasserman said. If an employment situation ever leads to litigation, “it always helps to show the employer takes the issue of sexual harassment very seriously and cares about its employees.”
