On September 30, 2004, California enacted AB 1825 (CA Govt. Code Sec. 12950),
a law that requires certain California employers to provide two hours of sexual
harassment training to all supervisory employees every two years. Here are
the law's key provisions.
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Covered employers
Those with 50 or more employees. That includes temporary service employees
and independent contractors. The law does not specify that the 50 employees
must work in California.
Covered employees
The law covers most employees who have some supervisory 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, 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."
Compliance date
The law requires ongoing training after January 1, 2006, for all supervisors,
such that they receive at least two hours of anti-harassment training every
two years.
For those supervisors employed as of July 1, 2005, the initial two hours of
training must be completed by January 1, 2006.
Supervisors who have received training after January 1, 2003 need not be re-trained
by January 1, 2006 (future bi-annual training will still be required).
With regard to supervisors hired or promoted into supervisory positions after
July 1, 2005, the training must be completed within six months of hire or promotion
to a supervisory position.
Training required
By statute, the training must:
- Include information and practical guidance regarding the federal and state
statutory provisions concerning the prohibition against harassment, the prevention
and correction of sexual harassment, and the remedies available to victims
- Include practical examples aimed at instructing supervisors in the prevention
of harassment, discrimination, and retaliation
- Be interactive
- Take place in a classroom or an equally effective interactive environment.
"Interactive" means a video alone will not suffice; there must be
Q&A's, role playing, or similar exercises.
Who can train
The statute specifically requires that the training must be presented by "trainers
or educators with knowledge and expertise in the prevention of harassment, discrimination,
and retaliation."
Penalties for non-compliance
If an employer violates the requirements of this section, the Department of
Fair Employment and Housing will issue an order requiring the employer to comply.
A claim that the training and education required by this section did not reach
a particular individual or individuals shall not in and of itself result in
the liability of any employer to any present or former employee or applicant
in any action alleging sexual harassment.
Conversely, an employer's compliance with this section does not insulate the
employer from liability for sexual harassment of any current or former employee
or applicant.
Still, count on lawyers for employees or ex-employees to argue that failing
to comply with the new law amounts to "reckless disregard" for it—and
that this failure should therefore become evidence in favor of an award of punitive
damages.
Finally, the law makes clear that it sets minimum standards and employers are
free to implement more rigorous or frequent preventive measures. This provision
also means employers will no longer be considered proactive for merely conducting
supervisory training every two years, since the law requires such training.
KF 11-04