Tom McInerney, a highly-experienced partner in Thelen Reid’s Labor and Employment Department, was recently invited by the California Fair Employment and Housing Commission (FEHC) to testify on its proposed regulations for harassment prevention training.
The FEHC’s draft regulations, issued last December, provided more detailed guidance to employers regarding how to comply with Assembly Bill 1825 (AB 1825). AB 1825 (codified at Cal. Gov’t C. § 12950.1) requires employers doing business in California, and employing 50 or more workers, to provide sexual harassment prevention training and retraining for supervisors. For more information, click here
The regulatory process provides the opportunity for public comments on the Commission’s proposals. Accordingly, the proposed regulations may change significantly prior to their finalization and adoption.
Mr. McInerney’s testimony focused on the following three provisions of the proposed regulations implementing AB 1825:
1. Location of "Supervisory Employees"
Section 7288.0 (a)(8)(A) of the proposed regulations states that "supervisory employees need not be physically located in California so long as they supervise California employees." This language not only expands the detailed procedures for who can conduct the training and the content of the training, but also attempts to provide global application to the Fair Employment and Housing Act. Mr. McInerney stated that this presents practical difficulties for many employers. He pointed to the costs that a small company may incur if they have employees spread throughout the U.S. or beyond our borders. Mr. McInerney proposed that the regulations apply only to supervisors in California. Alternatively, if they were to apply to those supervisors outside California who supervise employees within California, it would be critical that the regulations dealing with content and who is qualified to conduct such training be streamlined and generalized so as to not interfere with procedures in other jurisdictions, and to provide greater flexibility for employers to fashion their own training in conformity with their internal policies and procedures.
2. Desirable/Undesirable Qualities for a Trainer
The proposed regulations state, in very specific terms, that a desirable trainer must have, among other things, "a credible, positive professional reputation" and be "an effective listener." An undesirable trainer is described as one who is abusive or demeaning to women or men. Additionally, the regulations state, without definition, that a trainer should not be a "hugger." Mr. McInerney explained that employers should be able to use common sense in choosing a trainer and not be told to base the qualifications of a trainer on something as subjective as someone’s "reputation." As an alternative, Mr. McInerney suggested that this information may be better suited for a booklet distributed to employers by the FEHC, rather than be included in the regulations.
3. Duration of Training
The regulations provide that the training does not need to be completed in two consecutive hours. The regulations further provide that for training or "Webinars," the minimum duration of a training segment shall be no less than half an hour and, for e-training, the minimum training segment shall be fifteen minutes. Mr. McInerney pointed out that because e-training presents unique issues (i.e. the capability of the Internet connection, the computer operating system, etc.), it is not unreasonable to think that the overall time spent engaging in e-training will be more than two hours. Furthermore, requiring minimum connection times for e-training is overly arbitrary and unreasonable because e-training itself tracks how much time is spent on-line. If a supervisor loses a connection, or leaves their home computer to take a break, and their particular segment has not met a certain threshold, it does not mean that they are not receiving the training or spending the required time doing it.
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