Employers who operate in California and who employ 50 or more people must complete the first round of mandatory sexual harassment training for supervisors under Assembly Bill (AB) 1825. AB 1825 requires employers to provide all supervisory employees two hours of sexual harassment training every two years.

To comply with AB1825 by January 1, 2006, employers must understand the requirements and take steps to meet their obligations.

Which Employers Are Covered?

The law applies to all employers who operate in California and who regularly employ 50 or more employees or independent contractors. If these head count statistics are true then the employer is included under the law even if it is headquartered outside California.

Who is a "Supervisor" Who Must Be Trained?

While AB 1825 does not define "supervisory personnel", California's Fair Employment and Housing Act defines "supervisor" to include any individual with the authority "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...the exercise of that authority...requires the use of independent judgment." Therefore, employers should provide this training to any employee who has responsibility for any of the above personnel actions, even if the employee does not have an official supervisory title.

By When and How Often Must the Training Take Place

An employer must ensure that any of its supervisory personnel who have not received two hours of sexual harassment training since January 1, 2003 receive the mandated training before January 1, 2006. Another requirement is that this training must have covered the content specified by the law. If it does not meet these requirements, then the training must be provided before January 1, 2006.

There is an ongoing obligation to train new supervisory personnel within six months of their assumption of a supervisory position. This will apply to individuals assuming a supervisory position as of July 1, 2005.

Beginning January 1, 2006, the employer must provide all supervisory employee with the mandated training once every two years.

What Topics Must Be Covered

• Be at least two hours in length.
• Be effective and interactive.
• Provide information and practical guidance to learners.
• Cover relevant federal and state law.
• Explain prohibitions against and the prevention and correction of sexual harassment.
• Include practical examples to instruct supervisors in the prevention of harassment, discriminating and retaliation.
• Describe remedies available to victims of sexual harassment.

Must the Training Provider Be An Expert in Employment Discrimination Law

The law specifically requires that the training, whether instructor led or online, be provided by "trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation." The law codifies what courts have said for years. Courts have made clear that employers must ensure that the training provider completely understands the complex body of harassment and discrimination laws and keeps up-to-date with new cases that change the interpretations of these laws. (However, this does not mean that the provider must be an attorney. Attorney's are attorney's they may or may not be good educators.)

As reported in an article in the National Law Journal, in harassment lawsuits: "Plaintiff's attorneys and the EEOC'S have begun to question employers aggressively as to how much money they spend on training, the expertise of the trainers, the curriculum and employee response to the training. Thus, as training programs have become increasingly important, the quality of these programs has developed into the newest battlefield in the employment litigation wars." (Ellen McLaughlin and Carol Marchasin, "Training Becomes Important Step to Avoid Liability", National Law Journal, January 29,2001.)

Should Employers Provide Training on Other Forms of Harassment?

While the California law requires employers to provide two hours of sexual harassment training to supervisors, the law also makes clear that this training requirement is intended to represent a minimum threshold and does not "relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination."

Should Employers Provide Training to Non supervisory Employees?

California employers should continue to provide periodic workplace harassment prevention training to all employees-not just supervisors. The training provided to non-supervisors, however, may be shorter than two hours and does not have to specifically address each of the topics listed in AB1825.

What Should Covered Employers Do Now?

Employers should take the following steps if they have not already done so.

1. Determine what training on sexual harassment has been implemented since January 1,2003. This will indicated what training needs to be done by January 1, 2006 to be in compliance. It also needs to be determined what the content was of that training, does it meet the requirements of AB1825? Was the training at least two hours long?. Was the training created and provided by experts in harassment law?
2. If prior training occurred and it met the requirement of AB1825, who attended the training?
3. Was the training given to all supervisory personnel, as defined under California antidiscrimination law?
4. If not, who did not receive it? These people will need to be trained before January 1, 2006.
5. Which employees have taken on supervisory positions since the training? These employees will also need to be trained before January 1, 2006.
6. If training occurred and it met the requirements, then determine whether record keeping is sufficient to prove it.
7. If training is necessary before January 1, 2006, then keep accurate records.
8. Institute a proposed training schedule for training needs prior to, and beyond, January 1, 2006. Again record keeping and tracking is important.

Abstracted from Legal Report, published by the Society for Human Resource Management, written by Michael Johnson