A little over a year ago, California Government Code Section 12950.1 took effect, imposing on employers with 50 or more employees or contract workers the duty to provide supervisors with training regarding sexual harassment. Recently, the California Department of Fair Employment and Housing (DFEH), the agency charged with interpreting and enforcing California employment laws, implemented its final regulations interpreting the training requirements. The regulations, expected to take effect in February 2007, suggest that the California training requirements will have national repercussions. As interpreted by the DFEH, the sexual harassment training requirements apply not only to California-based employers but also to certain out-of-state employers with at least one supervisor located in California.
The New Regulations
According to the regulations, the training statute applies to any employer as long as the employer retains “50 or more employees or contractors for each working day in any 20 consecutive weeks in the current calendar year or preceding calendar year.” Full-time employees, part-time employees, temporary employees, and contract workers all count towards the coverage threshold. Whether those 50 employees or contractors work in California or outside the state is not relevant to the statute’s applicability — all that matters is that the employer retain the requisite number of workers for the designated time period. The duty to provide training about sexual harassment, however, applies only to supervisors located in California. Supervisors located outside of California who “remotely” supervise employees in California would not be subject to the training requirements.
While only supervisors located in California must be trained in accordance with the state’s law, the new regulations adopt a broad definition of “supervisor” that may encompass individuals who might not immediately be perceived as supervisors. For example, under the definition adopted by the new regulations, a supervisor is an individual who has the authority to perform (or to recommend the performance of) any of twelve listed “supervisory” functions, including hiring, assigning, rewarding, and adjusting the grievances of employees, as long as the exercise of that authority requires the use of independent judgment. The new regulations provide guidance on the format and content of the required sexual harassment training and the qualifications of the persons conducting the training. The regulations also elaborate on the timing of the training, which, under the statute, must be provided within six months after an individual assumes a supervisory role and at least every two years thereafter.
Covered employers based in a state other than California as well as those operating exclusively in California must comply with the California sexual harassment training requirements with respect to any supervisors they employ in California. Covered multistate employers that already provide sexual harassment training to their employees on a nationwide basis should ensure that the training provided to supervisors in California complies with the new California regulations. At first glance, it might seem financially worthwhile for multistate employers to model their nationwide supervisory training programs after the California requirements rather than maintaining separate programs for California and for the rest of the country. Complicating the matter, however, is the fact that several other states, including Connecticut and Vermont, require training on sexual harassment, so multistate employers should review their supervisory training practices to ensure that those practices comply with the laws of each state in which they operate.