An Ounce of Prevention Is Worth a Pound of Cure: California DFEH Clarifies Sexual Harassment Prevention Training Requirements

California’s Department of Fair Employment and Housing (“DFEH”) has updated its Employer FAQ guidance addressing the new sexual harassment prevention training requirements that were initially set to go into effect on January 1, 2020.  However, an amendment to the bill earlier this year moved the effective date to January 1, 2021.  As we reported when the initial bill was passed last year, the law expands harassment training requirements from employers with fifty or more employees to those with five or more employees, and from requiring training for supervisory employees only to requiring training for non-supervisory employees as well.  The training must be repeated once every two years.

The new guidance clarifies several important issues.  First, it defines what is meant by the requirement that an employer must provide “effective interactive training.”  Such training may include classroom training, computer-based training that is individualized and interactive, or a webinar training taught in real time.  The guidance specifies additional requirements for each type of training.

Second, the guidance clarifies how the requirements apply to seasonal or temporary workers, explaining that employers are not required to train employees “who are employed for fewer than 30 calendar days and work for fewer than 100 hours.”  Moreover, if a temporary employee is employed by a temporary services employer, the temporary services employer must provide training for the temporary employee.

Third, the guidance explains that employers do not need to train non-California employees, independent contractors, volunteers, or unpaid interns, but people falling within these categories must be counted in determining whether the employer meets the five-employee threshold for training.  As an example, the guidance states that “if an employer has 2 full-time employees and 6 unpaid interns, the employer would meet the training threshold requirement and would need to ensure the [2] full-time employees receive training[.]”

Fourth, the guidance states that if an employee has already received the training from a current, prior, alternate, or joint employer within the previous two years, the employee does not need to retake it, but the current employer must ensure that the training was completed.  Doing so “may require verifying compliance from the prior, alternate, or joint employer.”  Additionally, the employee must read and acknowledge receipt of the current employer’s antiharassment policy.

The guidance also addresses other miscellaneous questions, including questions about how to become a trainer, poster requirements, documentation, and payment for the training.  For employers interested in training resources, the DFEH will have online training courses available by early 2020, and in the meantime, DFEH is offering a Sexual Harassment and Abusive Conduct Prevention Training Toolkit.