Anti-Harassment Training Requirement

Reminders about a few of the training obligations facing California employers

1. Harassment prevention training must cover certain topics.

The Department of Fair Employment and Housing (DFEH) says employers can provide sexual harassment prevention training through interactive eLearning courses, in a classroom setting or through a live webinar. Regardless of the format, the training should cover a range of topics, including: 

• A definition of sexual harassment under the Fair Employment and Housing Act (FEHA),  and Title VII of the federal Civil Rights Act of 1964
• Types of conduct that constitute sexual harassment
• Strategies to prevent sexual harassment
• Remedies and resources available to targets of sexual harassment, including to whom they should report the misconduct
• Practical examples to help supervisors/managers recognize and prevent harassment, discrimination and retaliation  
• A discussion of harassment (and examples) based on gender identity, gender expression and sexual orientation
• Manager/Supervisors’ obligation to report harassment
• The obligation of employers to correct harassing behavior
• The limited confidentiality of the complaint process
• Guidance for manager/supervisors who have been personally accused of harassment
• Abusive conduct

Finally, any training must include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions.

2. Training for seasonal and temporary employees

Employers must provide training to temporary and seasonal employees, as well as any employee who is hired to work for less than six months. The training must occur within 30 calendar days after the hire date or within 100 hours worked, whichever comes first. In the case of temporary employees employed by an agency (as defined by Lab. Code sec. 2810.3) to perform services for clients, the training must be provided by the agency, not the client.

3. Training formats

Employers can satisfy this training by offering classroom training, e-learning or webinars as described here.

• Classroom training: In-person classroom training that features content created by a trainer. The employees receive the training from a trainer in a setting that is removed from the employees’ daily duties. California law in CCR sec. 11024(a)(9) specifically defines the credentials that a qualified trainer must possess.
• E-learning: Individualized, interactive and computer-based training that was created by a trainer and an instructional designer. Employees must have the opportunity to ask a trainer questions and receive a response within two business days.
• Webinar: An internet-based seminar that features content created and taught by a trainer and that is transmitted over the internet in real time. Employers who use a webinar for training must document that each employee who is not physically present in the same room as the trainer attended the training. They must also document that the employee actively participated in the training’s interactive content, discussion questions, hypothetical scenarios, polls, quizzes or tests and activities. Webinars must provide employees with the opportunity to ask questions and receive answers to those questions or otherwise seek guidance and assistance.

The regulations also authorize other effective, interactive training — including audio, video or other computer technology — but only if used along with, and as a supplement to, classroom, webinar or e-learning training.
 

4. Record-keeping requirements

To track compliance, employers must keep documentation for a minimum of two years and be able to provide copies upon request. 
The training record must include all of the following minimum information:

• The name of the supervisor who received training
• The training type and date
• The attendance sign-in sheet
• A copy of all certificates of attendance or completion issued
• A copy of all written or recorded materials that comprise the training
• The training provider’s name

In addition to the above, specific documentation requirements for both trainers and employers are mandated for e-learning and webinar training:

• E-learning: The trainer must maintain all written questions received and all written responses or guidance provided for a period of two years after the date of the response.
• Webinars: The employer must maintain a copy of the webinar, all written materials used by the trainer and all written questions submitted during the webinar. The employer must also document all written responses or guidance the trainer provided during the webinar

5. Employers need to develop an anti-harassment policy that includes a complaint procedure.

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

1. Is in writing;
2. Lists all current protected categories covered under the Act;
3. 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;
4. Creates a complaint process to ensure that complaints receive:
   • An 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; and
   • Timely closures.
5. Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
   • 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.
6. Instructs supervisors/managers 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.
7. 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.
8. States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
9. Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
10. 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. Employers should also routinely discuss the sexual harassment policy with employees at meetings and remind them of the complaint procedures and document these additional steps. This additional training will show that the company is serious about preventing harassment and took affirmative steps to protect its employees.