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It's Now the Law:
Sexual Harassment Education and Training to Supervisory Employees
by Barbara Buchholz, Esq.
The State of California, in recent legislation passed last year (California Government Code §12950.1), provides that employers employing 50 or more employees must provide two hours of sexual harassment education and training to supervisory employees (employed as of July 2005) no later than January 1, 2006. Thereafter, the employer must provide supervisory employees sexual harassment education/training at least once every two years. The training must consist of at least two hours of classroom or other effective interactive method of instruction focused on harassment. All incoming supervisory personnel must be trained within six months of their hire date and, thereafter, on the two-year schedule.
How Do You Know If You, the Employer, Meet the Minimum Number of Employees?
If your company/organization regularly employs 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract or any person acting as an agent of the employing company/organization either directly or indirectly, as well as the state or any political/civil subdivision of the state and cities. (State employees have expanded employee training programs under California Government Code §19995.4.) Translated, that means that as long as your company or organization has 50 or more persons who provide services, whether full-time, part-time, commission, independent contractor or agent, you must train the supervising personnel. The law is silent as to whether an out-of-state employee can be counted in determining the threshold number of employees, but arguably, they would count towards the total based on how the law is drafted.
What Happens if I Do Not Train the Supervisors?
The law does not impose civil liability for the failure to train a particular individual or individuals, but as a practical matter, failure to train will prevent the employer from raising a valid defense if they were to be sued. Conversely, the employer's compliance with supervisor training does not insulate it from lawsuits for sexual harassment.
If the employer violates the law by failing to train supervisory personnel, the Department of Fair Employment and Housing (DFEH) Commission shall issue an order requiring the employer to comply.
How Do I Know a Person is "Supervisory Personnel" Subject to Training?
The Legislature in enacting the law wanted to establish a minimum threshold of training to supervisory personnel. The goal is that each employer take "all reasonable steps necessary to prevent and correct harassment and discrimination." The theory is to encourage all employers to provide more, not less, training and education to their employees.
With that rationale as a backdrop, clearly all employees designated as a "manager or supervisor" should receive training. More sublime are those employees who, without the title, exert supervisory or management activities in their day to day tasks. Ask yourself this: Does that employee direct the work of others? If the answer is "yes," then you should consider them for training.
The Code defines supervisor as an individual having authority to hire, transfer, lay off, recall, suspend, promote, discharge, assign, reward or discipline other employees or the responsibility to direct them, as long as the exercise of authority requires the use of independent judgment. (California Government Code 12926[r].)
How Do I Get The Training and Education for My Supervisory Personnel In Order to Comply?
The law favors employers that affirmatively seek to eliminate harassment, discrimination, and other forms of unlawful conduct from the workplace. To that end, we want to help our clients to establish and maintain this training program in compliance with the law.
Training Options offered by Bradford & Barthel, LLP:
Single Location Training Programs:
We offer a "single location program" which allows multiple employers to come to the same location for the designated training in order to meet the statutory requirements. The fee is charged per attendee with discounts to same employer multiple attendees. Please contact Jennifer Nino in our Rancho Cucamonga office at (909) 476-0552 or e-mail Jnino@socal.bradfordbarthel.com for site locations, to RSVP, and for discounted rates on multiple attendees of the same employer.
On Site Training Program:
Have more than 20 attendees from your company organization that need training - Bradford & Barthel, LLP can come to you. The fee is conditioned on the number of attendees, location of training sessions and number of training sessions required. The training session can be conducted at the employer's facility or other selected location as agreed on. Please contact Jennifer Nino in our Rancho Cucamonga office (909) 476-0552 or e-mail Jnino@socal.bradfordbarthel.com for more information and to make specific arrangements for your custom-tailored training sessions.
Barbara Buchholz, Esq., specializes in Employment and Labor Law at Bradford & Barthel, LLP.
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