By: Philip A. Toomey, Esq.
As we previously reported, California recently passed legislation requiring mandatory sexual harassment training for any employer who has 5 or more employees (AB1343). The Department of Fair Employment and Housing (“DFEH”) has now published guidelines employers should follow to ensure compliance with this law. Here are the most common questions related to AB1343, and what the Guidelines require.
Who is an Employee?
Employers who employ 5 or more employees must provide sexual harassment and abusive conduct prevention training. There is no requirement that the 5 employees work at a single site. “Employees” include full time, part time and temporary workers.
Are Independent Contractors Counted as Employees?
The Guidelines do not attempt to define when an “independent contractor” is counted as an employee. However, in our view, the rationale of the California Supreme Court in its 2018 decision, Dynamex Operations West, Inc. v. Superior Court of Los Angeles, while dealing only with wage and hour claims, deems equally applicable to the concerns AB1343 addresses. Employers using “independent contractors” as a regular part of their workforce should carefully consider whether such workers are more correctly classified as “temporary workers” under the DFEH Regulations. Since the threshold number of employees is so low, the social issues AB1343 attempts to address are important, and the significant challenges an employer may have classifying workers as “independent contractors,” we believe the more prudent approach is to include independent contracts in the count, and document they have received the appropriate training.
When, How Much and How Often Must Training Occur?
One hour of training must be provided to non-managerial employees, and two hours of training must be provided to managerial employees. All employees must be trained, or retrained, in 2019, even if training was received in 2018. After January 1, 2020, employees must be re-trained once every two years.
What Type of Training is Required?
Training must include prevention of harassment, discrimination and retaliation based upon identity, gender expression, and sexual orientation. It must also separately include practical examples of gender harassment and discrimination. Training must also include prevention of “bullying” and other forms of hostile and abusive workplace conduct. Training must be provided by trainers or educators with knowledge and expertise in those areas. AB1343 requires the Department to produce and post what amounts to “safe harbor” training courses to its website, which employers may utilize instead of hiring a trainer. The DFEH does not expect those courses to be available until late 2019. In the meantime, the DFEH website contains a “toolkit,” which includes a downloadable sample Sexual Harassment and Abusive Conduct Prevention Training PowerPoint, Sexual harassment prevention brochure, Sexual harassment prevention poster, and Workplace Harassment Prevention Guide. (Click here to access the DFEH toolkit.). The DFEH has not yet provided regulation or guidelines on what constitutes bullying or impermissible hostile workplace behavior.
Must Employees be Paid for Training?
It is the DFEH’s interpretation that California law makes clear it is the employer’s responsibility to provide any training, including paying for all costs incurred. According to the Guidelines, employees may not be required to take such training during their personal time. The training must be “provided” by the employer as part of an individual’s employment. Hence, the time an employee spends in training must be compensated.
Leech Tishman’s Employment Practice Group can help clients ensure compliance with California’s complex and technical employment laws and can assist clients with defending against civil or administrative actions.
If you have any questions regarding California’s unique employment laws or these employment law updates, please contact Philip Toomey. Phil serves as Leech Tishman’s West Coast Business & Employment Client Relations Partner and practices in the firm’s Employment, Corporate, Litigation and Real Estate Practice Groups. Phil is based in the Leech Tishman’s El Segundo, CA office. He can be reached at 424.738.4400 or firstname.lastname@example.org.
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