As California employers lay out their plans for compliance training in the coming year, the California Department of Fair Employment and Housing (DFEH) has clarified how to handle training supervisory employees who may have received AB 1825-compliant training sometime in 2018. The DFEH has taken the position that both supervisory and nonsupervisory employees who received sexual harassment prevention training in 2018 should receive it again in 2019.
As previously discussed,1 California Senate Bill (SB) 1343, enacted on September 30, 2018, made several significant adjustments to the supervisor training requirements Assembly Bill (AB) 1825 established in 2004.2 First, it expanded the eligibility requirement for employers, so that all employers with more than five employees in California (as opposed to 50, which had previously been the threshold) must provide sexual harassment prevention training every two years. Second, it expanded the actual reach of the training requirement. The law now encompasses all employees (including seasonal and temporary workers), not just an employer's “supervisory employees” previously covered by AB 1825.
Regarding timing, SB 1343 states: “(a)n employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by the January 1, 2020, deadline.” The FAQs published by the DFEH further state, “(e)mployees who were trained in 2018 or before will need to be retrained.” A lingering question arising from this language was whether the word “employees” referred to both supervisory and nonsupervisory employees. The answer the DFEH provided to Littler earlier this week is “yes.” Therefore, any employee who received sexual harassment prevention training in 2018 must also receive training this year.
It is understood that this re-training requirement presents a challenge to employers that had provided supervisory employees with AB 1825 training in 2018. Absent the 1343 amendment, they would not otherwise have been required to provide that training again for two years. However, based on the DFEH’s guidance, re-training in 2019 is required to comply with the letter of AB 1825 as amended by SB 1343.
The DFEH will be preparing materials, which will be available on their website in the coming year, to assist employers with their training needs. In the meantime, employers with operations in California are advised to review their training schedules to ensure compliance.
For a detailed discussion on the impact of the DFEH’s guidance, please visit Littler’s January 17, 2019 podcast on this topic available here.