By Karen K. McCay
Pahl & McCay
225 West Santa Clara Street
San Jose, California 95113
408/286-5100 (phone); 408/286-5722 (fax)
Please understand that the information discussed in this Article is general in nature and is not intended to be legal advice. It is intended to assist owners and managers in understanding this issue area, but it may not apply to the specific fact circumstances or business situations of all owners and managers. You may need to consult applicable state and local laws. For specific legal advice, consult your attorney.
California Law Requires Interactive Training.
The California Fair Housing and Employment Act (FEHA) imposes a general obligation requiring employers to take “all reasonable steps” necessary to prevent and redress sexual harassment in the workplace. California law requires all employers having fifty or more employees to provide classroom or other effective interactive training and education regarding sexual harassment every two years. This training was first required in 2005 with all supervisors employed as of July 1, 2005 needing to be trained by January 1, 2006. All new supervisors after July 1, 2005 are to be trained within 6 months of taking their supervisory position. Are your two years up? For those who went to training in 2005, the two-year anniversary date is fast approaching.
What is a “Supervising Employee?”
Although the new statute does not directly define “supervising employee” or “supervisor,” FEHA defines a “supervisor” as “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of the authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” Cal. Gov. Code § 12926(r).
What constitutes “satisfactory training,” and who must train?
Satisfactory training includes classroom or other effective “interactive” training and education. A live in-person classroom session or an interactive online presentation is sufficient; however, a passive video course is not sufficient. Training must also include practical examples. Persons qualified to perform training include “trainers or educators with knowledge and expertise in the prevention of harassment discrimination, and retaliation.” Pahl & McCay’s attorneys qualify as “trainers.”
When must training take place?
For all newly hired or promoted supervisors employed after January 1, 2005, training must be provided within six months of the supervisory employee’s start in that position. After January 1, 2006, sexual harassment training for supervisors must occur once every two years. Pahl & McCay has a training program which satisfies these requirements. If you want to schedule a training for your employees please contact Karen McCay (firstname.lastname@example.org). If you only have a few employees who need to be trained, every six months, Karen McCay presents the same course for members of the Tri County Division of the California Apartment Association which is also available to clients of Pahl & McCay. Contact Jennifer Phakoom of TCAA for more information. (email@example.com).
What happens if you do not comply?
The failure to train a supervisor will not automatically result in liability in a sexual harassment action. Additionally, compliance does not absolutely insulate an employer from liability. The penalty for failing to train, however, is significant. An employer’s failure will be viewed by a court as compelling evidence that an employer did not perform all “reasonable steps” toward prevention of sexual harassment. Further, non-compliant employers are subject to a potential Order from the Department of Fair Employment and Housing requiring compliance.
Need further Assistance?
Should you have any further questions about training requirements, sexual harassment generally, or other areas of employment law affecting your enterprise, or if you would like to discuss training options for your supervisors and employees, please contact the Pahl & McCay attorney with whom you regularly work or you may contact us generally at firstname.lastname@example.org.