Sexual Harassment Training – Is Your Agency 2021 Ready?

With the new year approaching, now is a good time to audit your agency’s compliance with sexual harassment training requirements.  Since 2005, the California Fair Employment and Housing Act (“FEHA”) has required employers to provide supervisory employees with training in preventing sexual harassment (sometimes called “AB 1825 harassment training”). Recently, the State Legislature has greatly expanded these training requirements. In 2016, AB 1661 was passed requiring sexual harassment training for elected or appointed public officials. Then in 2018, in the wake of the Me Too movement, the FEHA was amended so that it also required harassment training for nonsupervisory employees and seasonal/temporary employees hired to work less than six months (SB 1343/SB 778). Agencies must be in compliance with these new requirements by January 1, 2021.

By January 1, 2021, all public and private employers with more than 5 employees must ensure that supervisory employees have completed 2 hours of sexual harassment prevention training and nonsupervisory employees have completed 1 hour of sexual harassment prevention training.  Employees must complete this training every two years thereafter. Employees who completed this training in 2019 need not complete the training for another two years (2022). New employees must complete this training within 6 months of being hired or assuming a supervisory position. If a new employee has received sexual harassment prevention training within the past two years from a former, alternate, or joint employer, an agency can place the employee on a two-year tracking schedule from the date of the last training. However, if the training provided by the employee’s previous, alternate, or joint employer does not comply with FEHA requirements (in terms of training length or content), the agency may be liable for noncompliance.

The Department of Fair Employment of Housing defines a “supervisory” employee 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 that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” (Cal. Gov. Code § 12926, subd. (t).) Under this definition, employees with any level of supervisory authority may be considered supervisory, regardless of their title.

Also beginning January 1, 2021, agencies must ensure that seasonal, temporary, or other employees that are hired to work for less than six months have completed sexual harassment prevention training. Seasonal, temporary, or other employees who are hired to work for less than six months must complete this training within 30 calendar days from the date of hire or first 100 hours worked, whichever is sooner. This means any current seasonal/temporary employees who have been employed for longer than 30 calendar days or worked more 100 hours must complete sexual harassment preventing training before the January 1, 2021 deadline. The required training is either one or two hours, depending on whether the seasonal/temporary employee is in a nonsupervisory or supervisory position, respectively.

In order to demonstrate compliance with the FEHA, agencies must keep documentation of the training it has provided its employees for a minimum of two years. The documentation should include the names of the employees trained, the date of training, the name(s) of the training provider(s), sign in sheets (if any), copies of all certificates of attendance or completion issued, and copies of all written or recorded materials that comprise the training.

Agencies can have employees complete the free online sexual harassment training provided by the Department of Fair Employment and Housing (available at: https://www.dfeh.ca.gov/shpt/), available in one- or two-hour options for nonsupervisory and supervisory employees.

As mentioned above, agencies must also ensure that “local agency officials” receive two hours of sexual harassment training and education if the agency provides any type of compensation, salary, or stipend to the local agency official. (Cal. Gov. Code, § 53237.1.) A “local agency official” is “any member of a local agency (city, county, city and county, charter city, charter county, charter city and county, or special district) legislative body and any elected local agency official,” including appointed members of the governing board. (Cal. Gov. Code, § 53237.) Local agency officials must complete this training (sometimes called “AB 1661 harassment training”) within the first six months of taking office or commencement employment and every two years thereafter. (This requirement has been in place since 2017 and the January 1, 2021 deadline does not apply.)

Agencies must maintain for a period of five years records to demonstrate compliance that include (1) the dates that local agency officials satisfied sexual harassment training and education and (2) the entity that provided the training.

Before local agency officials assume a new position, agencies must provide a written recommendation on the training available to comply with this requirement. This training can be completed online and may consist of training courses or self-study materials with tests. The required training content of AB 1661 training generally tracks the FEHA training requirements. Agencies that develop their own trainings must consult with legal counsel regarding the sufficiency and accuracy of that proposed content. (Cal. Gov. Code, § 53237.1(c).)

Below is a chart summarizing the sexual harassment preventing training requirements for different employees.

This article was originally published on LCW’s California Public Agency Labor & Employment Blog. You can read other articles and explore our blog by visiting calpublicagencylaboremploymentblog.com.