Employers in California have a duty to take reasonable steps necessary to prevent and promptly correct discriminatory and harassing conduct. Employers must create a work environment free from prohibited employment practices. Employers must inform employees about their protections against harassment, discrimination and retaliation in the workplace. This is part of the employer’s duty to take all “reasonable steps” to ensure a workplace is free from harassment.
This obligation includes posting and notice requirements, harassment-prevention training and creating harassment-prevention policies. If a harassment-prevention policy is not already part of your written policies, employers are encouraged to develop a policy now.
The steps listed below outline the minimum legal requirements for a harassment prevention policy under California law. Your harassment-prevention policy must be in writing.
Your Policy Should:
You have an obligation not only to prevent harassment but, if an allegation arises, to promptly correct any harassing behavior. Taking such steps can help reduce employer liability.
Your policy should clearly explain your process for raising a harassment claim and provide alternate avenues for raising complaints so that an employee can bypass their manager if, for example, the manager is the one engaging in the harassment.
You are legally required to create a complaint process that ensures that complaints receive:
Under California law, if your workforce at any facility or establishment contains 10 percent or more of people who speak a language other than English, you must translate your policy into every language spoken by at least 10 percent of the workforce.
Employers with multilingual workforces should take these steps to make sure that anti-harassment policies are clearly communicated and effective:
You must distribute your harassment-prevention policy using one or more of the following methods:
Distribute your anti-harassment policy to all employees, volunteers and unpaid interns. As a good practice, you should distribute the policy to any independent contractors as well.
Regardless of the method of distribution, employers are required to obtain an acknowledgment of receipt and understanding from the employees and keep a copy of the acknowledgment in employees’ personnel records.
California employers of five or more employees must provide expanded training on sexual harassment prevention to all of their employees by Jan. 1, 2021.
Beginning January 1, 2020, employers must provide training to temporary and seasonal employees, or any employee who is hired to work for less than six months. The training must occur within 30 calendar days after the hire date or within 100 hours worked, whichever comes first. In the case of temporary employees employed by an agency (as defined in Section 201.3 of the Labor Code) to perform services for clients, the training must be provided by the agency, not the client.
In lieu of training, employers may obtain a copy of a temporary employee’s current certificate of prior training and track training from that date.
As defined by Government Code sec. 12926(s)(t), “Supervisor” means any individual having the authority, in the interest of the employer, 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.
The harassment prevention training must include information and practical guidance about federal and state sexual harassment laws, including harassment prevention and correction, and remedies that are available to victims. The training must also include a component on the prevention of “abusive conduct,” as well as a component on harassment based on gender identity, gender expression and sexual orientation. Employers can hire third-party companies that are qualified to conduct training under DFEH regulations for either in-person or online training. Employers can satisfy this training by offering classroom training, e-learning or webinars. Before deciding to utilize a company, the employer should verify that its training meets the requirements outlined below.
Classroom training: In-person classroom training that features content created by a trainer. The employees receive training from a trainer in a setting that is removed from the employees’ daily duties. California law in CCR sec. 11024(a)(9) specifically defines the credentials that a qualified trainer must possess.
E-learning: Individualized, interactive and computer-based training that was created by a trainer and an instructional designer. Employees must have the opportunity through a link or directions on how to ask a trainer questions and receive a response within two business days of asking a question.
Webinar: An internet-based seminar that features content created and taught by a trainer and that is transmitted over the internet in real-time. Employers who use a webinar for training must document that each employee who is not physically present in the same room as the trainer attended the training. They must also document that the employee actively participated in the training’s interactive content, discussion questions, hypothetical scenarios, polls, quizzes or tests and activities. Webinars must provide employees with the opportunity to ask questions and receive answers to those questions or otherwise seek guidance and assistance.
Large-group webinar: When using this type of training, the employer must comply with documentation procedures, including:
The regulations also authorize other effective, interactive training —including audio, video or other computer technology— but only if used along with, and as a supplement to, classroom, webinar or e-learning training.
The trainer must be one of the following:
Additional mandatory qualifications for the trainer include knowledge of and ability to train on the following topics (2 CCR sec. 11024(a)(9)):
There is currently no certification requirement for qualified trainers, and the DFEH is unable to approve training providers or provide guidance as to whether one meets the qualifications of a trainer. If you believe you meet the requirements, you may choose to offer your services as a trainer. 2 CCR 11024
To track compliance, employers must keep documentation for a minimum of two years and be able to provide copies upon request.
The training record must include all of the following minimum information:
In addition to the above, specific documentation requirements for both trainers and employers are mandated for e-learning and webinar training:
The Department of Fair Employment and Housing must develop or obtain two online training courses on the prevention of sexual harassment in the workplace in accordance with the provisions of the law. Both courses must contain an interactive component that requires viewers to periodically answer questions in order for the course to proceed. The DFEH expects to have such training available by late 2019.
The DFEH also released the Harassment Prevention Guide for California Employers which provides recommended employer practices for preventing and addressing all forms of workplace harassment, including harassment based on sex.
The guide is available to help employers:
The CDA Practice Support Sample Employee Manual template includes a current Discrimination, Harassment and Retaliation Prevention policy.
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