California Sends a Strong Message to Employers: Prevent and Address Sexual Harassment…or Else!

There is a monumental seismic shift occurring throughout the country, but given California’s reputation as the place where seismic shifts are most likely to occur, it’s no surprise that it can be felt most strongly in the Golden State. What’s the shift, you ask? It’s all about how #MeToo and other movements related to sexual harassment have increased the legal obligations employers have to California employees to protect them from illegal harassment.

On September 30, 2018, California Governor Jerry Brown signed a series of bills related to workplace sexual harassment. Together, they make up one of the most sweeping collections of laws on the topic. Earlier this year, the state of New York embarked on a similar path to combat workplace sexual harassment in a comprehensive way.

The bills are aimed at expanding legal protections to victims of workplace harassment, and expanding legal liability for those found to have engaged in such conduct.

New Requirements for Sexual Harassment Training

The new law is simple: California employers (those with five or more employees) must provide harassment prevention training to EVERYONE. That means HR, learning, talent, diversity, legal or any other corporate professional in charge of deploying harassment prevention training needs to pay close attention.

SB 1343 requires employers of five or more employees (this includes seasonal and temporary employees) to provide sexual harassment training every two years:

  1. By January 1, 2020 (meaning training must happen in 2019)
  2. Within six months of new employees assuming their position (and once every two years thereafter)
  3. For at least two hours for all supervisors
  4. For at least one hour for all nonsupervisory employees

Although not required, SB 1300 authorizes employers to include bystander intervention training into its training program. SB 1343 also requires the California Department of Fair Employment and Housing to develop and make available training courses that comply with these requirements.

What Does This Mean if You’re in Charge of Training?

California has a long-standing tradition of being a leader in providing protection against unlawful harassment and discrimination. The state already has the nation’s strongest laws related to an employer’s obligation to take reasonable steps to prevent harassment and discrimination. Training has long been recognized as a key piece of the prevention puzzle.

The new laws signed by Gov. Brown include powerful provisions that put employers on notice that the state will hold them liable if there is a lack of proof that these steps were taken. That means that training cannot be looked at as a simple, check-the-box compliance activity. These new laws make it clear that training, along with other prevention techniques, should be taken seriously and should be rooted in the big-picture goal to help create a healthier and more inclusive workplace.

To that end, a few issues for those in charge of training to consider include:

  • Timing. First, it means you need to get your training calendar organized right away, especially if you have a large employee population. Since the training must be completed for all employees by January 1, 2020, that means employers have 15 months to design and deploy training, and to develop mechanisms to track compliance.
  • Budget. If a company decides to engage with an outside consultant for live or online training (or a combination of both), a budget needs to be developed right away. We’ve drafted a sample letter with details about the new training mandate. The sample letter includes language related to the budget needed to comply with both the letter and the spirit of the new law. If a company decides to design and deliver the training itself, it will need to have sufficient internal staff to do so. If a company decides to use the training that will be developed by DFEH, it will have to develop a mechanism to track attendance (including proof that employees and managers have attended for the requisite amount of time), which should include a way to easily produce compliance reports.
  • Content. Current legal and regulatory guidelines already require that the training include:
    • Information and practical guidance regarding the legal prohibition against sexual harassment (federal and state law)
    • Steps employers can take to prevent and correct sexual harassment at work
    • Remedies available to victims of workplace sexual harassment
    • Practical examples aimed at teaching supervisors about how to prevent harassment, discrimination, and retaliation
    • Education on the prevention of abusive conduct
    • Training about harassment based on gender identity, gender expression, and sexual orientation
    • Although not technically required, companies would be wise to include bystander intervention training into their program
  • Additional Content. More employers are realizing that taking a check-the-box approach to preventing workplace harassment has failed. Savvy employers know that they must go beyond the minimum legal mandates and also encourage and reward respectful and inclusive behavior. A key way to achieve this goal is by designing a training program that goes beyond the topics legally-mandated. This means providing employees with skills training on communication, building empathy, conflict resolution, emotional intelligence, and ethical behavior, among other topics. By taking this type of holistic approach, employers send a loud and clear message to their employees: We care about much more than simple legal compliance; we want to create a world-class culture where all our employees feel included and valued.
  • Audience. Although California employers have been training managers for more than a decade, they will now have to train their entire workforce. In addition to the different legal mandate – which calls for two-hour sessions for managers and one-hour session for employees – the content also needs to be distinct. The manager training is longer for a reason: Managers, particularly those in California, the state with the most comprehensive sexual harassment laws in the nation, must be aware of ways in which their action (engaging in wrongful behavior) as well as their inaction (failure to take steps if they know about wrongful behavior), could legally bind the company. And beyond the legal issues, managers must be trained on leadership and communication techniques that will create a healthier workplace culture.
  • Preparation. Begin to think of the questions you’ll get from employees about the need for training and the details of the training. Consider assembling an FAQ document that addresses questions you’re sure to receive. These might include giving employees some details about the laws, including a brief explanation about why the legislature thinks it’s important to mandate training. You should also anticipate questions about logistics and your expectations (how and when will the training will be rolled out, when you expect employees to complete the training, etc.) Anticipating questions will help you to develop a smoother plan to roll-out the training. And by not only anticipating questions but providing your employees with answers, you will reduce any angst they might have about what’s coming.
  • Intent and Tone. Given the breadth of the new legal mandates (training and the other laws related to sexual harassment signed by the governor), the message is clear: Employers have a serious responsibility to not only educate their workforce about harassment, but to take seriously their obligation to do all they can to prevent it from occurring. Your best bet is to set the tone at the workplace culture level, rather than the compliance level.  Here is a sample message to send to employees.

If you’re feeling overwhelmed at the prospect of complying with the new California laws, we’re here to help. Set up a time to talk with one of our workplace culture consultants and see how Emtrain can provide the platform and expertise you need.

Janine Yancey
Founder & CEO Workplace Visionary
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