What does California Training Law Require Regarding learner Q&A in online harassment training?
2 CA ADC § 11024. Sexual Harassment Training and Education:
(B) “E-learning” training is individualized, interactive, computer-based training created by a trainer and an instructional designer. An e-learning training shall provide a link or directions on how to contact a trainer who shall be available to answer questions and to provide guidance and assistance about the training within a reasonable period of time after the supervisor asks the question, but no more than two business days after the question is asked. The trainer shall maintain all written questions received, and all written responses or guidance provided, for a period of two years after the date of the response.
When the public sought clarification of this regulation, the Fair Employment and Housing Council (which included Emtrain’s VP of Workplace Strategy, Patti Perez) answered this way:
Requiring the trainer to maintain all written questions and responses will likely discourage open discussion during training such that the Council should strike the last sentence of this subsection.
The Council does not think maintaining written questions and responses will discourage open discussion, particularly because the written record can be anonymous and most students do not know the duties of trainers anyway. On the contrary, maintaining the record would enable presenters to craft more effective presentations by addressing common areas of concern and enable employers to focus their subsequent training where there might be a deficit in knowledge. Therefore, no changes have been made.
This section seeks to require an E-learning trainer to maintain all written questions received and all responses or guidance provided for a two year period after the date of the response. This requirement exceeds the statute with regard to E-learning training and therefore is unlawful. See Government Code sections 11342.1, 12935(a), and 12950.1. Accordingly, the Council should revoke the proposed amendment.
Nothing in the statute forbids the Council from promulgating this rule. The statute is silent on the specific issue of maintaining questions and answers and the Council’s charge is to effectuate the statute, which in this case means clarifying an issue that the legislature did not address.
See FEHC Statement of Reasons: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/FinalStatementofReasons.pdf?la=en
SUMMARY OF REGULATION REQUIREMENTS FOR LEARNER Q&A IN ELEARNING
As a starting point, the learner in online harassment training must have access to a feature that allows the person to ask questions of the “trainer” and get timely responses, which means a response within two business days. The regulations also make clear that the training content and the learner questions received and the answers provided are to be documented and maintained for a period of two years after the training date.
When the public questioned the regulations and challenged whether the statute intended the eLearning provider to answer the learner questions and maintain the written records—the FEHC unequivocally said “yes”—the eLearning providers are the “trainers” within the meaning of the statute, which means the eLearning providers are answering the questions and maintaining the records for two years. How does Emtrain know that? Our VP of Workplace Strategy, Patti Perez, was a member of the FEHC when they issued that guidance.
HOW DOES EMTRAIN’S Q&A WORK?
Within our content (both programs and lessons), learners have the ability to ask a question through Emtrain’s own Q&A forum. The digital communication from Emtrain experts provides general information about the topic and best practices. While we provide personalized guidance on workplace culture issues, we specifically do not provide legal advice. In fact, digital communications from Emtrain experts contain the following disclaimer:
Emtrain and/or its experts are not creating an attorney-client relationship or providing advice on specific workplace situations. These are best practices only. Further, Emtrain de-identifies people and questions to protect learners’ anonymity when asking questions. If learners consent, Emtrain shares de-identified questions and answers with employers in order to give employers visibility into any trending issues or concerns.
The question is de-identified from the questioner and the public never sees an employer connected to the question asked or answer given. So from both the employer and employee’s perspective, it’s a safe interaction as it protects all concerned parties.
We believe having our neutral, subject matter experts provide general information and guidance benefits both employees and employers.
- Many of these learner questions are not questions people would ask HR. People generally try to figure out co-worker situations on their own before involving the HR team. Whether right or wrong, many people view the HR team as the resource of last resort; they don’t view the HR team as proactive advisors. As a result, employers often don’t have visibility to early warning signs for problems and are often forced to be reactive rather than proactive on employee relations issues.
- Emtrain’s experts are often guiding people that certain conduct IS NOT harassment, because it’s either not related to a legally protected characteristic and/or it’s not severe or pervasive enough to become illegal. That message is much more credible and persuasive for employees when it comes from a neutral, third party rather than the employer’s HR team.
- Employers get the advantage of promoting an employer-sponsored employee benefit simply by giving employees access to neutral, third-party experts to answer general questions and give best practices. It shows employers genuinely want to give employees access to legal information rather than “hide the ball” to favor employers over employees. This employee benefit shows a real employer commitment to a healthy workplace culture rather than empty slogans.
WILL WE SEE THE QUESTIONS OUR EMPLOYEES ARE ASKING?
Yes! Emtrain AI allows you to browse the questions asked by your employees and see the answers provided by Emtrain’s subject matter experts. Further, Emtrain AI provides insights on the trending questions and answers based on the number of views.
Examples of our Q&A can be found here: https://answers.emtrain.com/answers