Employment Law Alert: California Amends Deadline for Sexual Harassment Prevention Training

As we discussed in our 2019 California Employment Law Update and Mid-Year Update seminar series, California has expanded sexual harassment prevention training requirements to apply to employers with five or more employees or contract workers (the prior threshold was 50 employees/contract workers).  Also, while previously the law required employers to provide supervisors with two hours of such training, current law now also requires employers to provide one hour of such training to non-supervisors. The California Department of Fair Employment & Housing has interpreted the law to require all covered employers to provide all such supervisor and non-supervisor training by January 1, 2020, even if such training had been provided in 2018.

On August 30, 2019, California Governor Gavin Newsom signed Senate Bill 778, which went into effect immediately to modify the deadline for training. SB 778 extends the above-referenced training deadlines to January 1, 2021. The law also clarifies that employers who provided the specified training in 2019 are not required to retrain the same employees until two years thereafter. Consistent with prior law, new employees (and employees assuming supervisory positions) must be trained within six months.

As to employers with 50 or more employees/contract workers covered by pre-2019 sexual harassment prevention training requirements, we do not interpret the new law to extend the supervisor training deadlines that existed under prior laws. This would mean that such employers need to continue to train supervisors every two years and within six months of a new supervisor assuming a supervisor position-even if that would mean trainings before January 1, 2021.

Although the new law has not changed record-keeping requirements for training, we review those requirements here to help employers ensure compliance.  Employers must keep for a minimum of two years documentation of the training provided, including but not limited to, the names of the employees trained, the date of training, the sign in sheet, copies of all certificates of attendance or completion issued, the type of training, copies of all written or recorded materials that comprise the training, and the name of the training provider.

There are additional record-keeping requirements if an employer uses a mode of training other than live classroom instruction. For example, if an employer uses webinar training, whose content is created and taught by a trainer and transmitted over the internet or intranet in real time, employers must document and demonstrate that each supervisor who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated with the training’s interactive content, discussion questions, hypothetical scenarios, polls, quizzes or tests, and activities, and the webinar must provide the supervisors an opportunity to ask questions, to have them answered and otherwise to seek guidance and assistance. Furthermore, for a period of two years after the date of the webinar, the employer must maintain a copy of the webinar, all written materials used by the trainer and all written questions submitted during the webinar, and document all written responses or guidance the trainer provided during the webinar.

If an employer uses an  “E-learning” training, which the regulations define as an individualized, interactive, computer-based training created by a trainer and an instructional designer, the training must provide a link or directions on how to contact a trainer, who must be available to answer questions and to provide guidance and assistance no more than two business days after the question is asked.  Furthermore, the trainer must maintain all written questions received, and all written responses or guidance provided, for a period of two years after the date of the response.

We recommend that employers consult with their employment law counsel to ensure compliance with all training-related requirements.