FEHC Modifies Proposed AB 1825 Training Regulations

California's Fair Employment and Housing Commission (FEHC) has issued a third version of proposed regulations under Government Code section 12950.1, or AB 1825. As of January 1, 2005, employers with 50 or more employees have been required to provide two hours of sexual harassment prevention training to supervisory employees every two years. Since then, Jackson Lewis has trained thousands of supervisors through in-person seminars, e-learning through our alliance with Workplace Answers, and blended solutions of live training and e-learning.

Beginning in December 2005, when the FEHC initially proposed the regulations, Jackson Lewis presented written recommendations and live testimony to the FEHC, urging further clarification and revision. On June 20, 2006, the FEHC issued modified proposed regulations that incorporated 11 of those recommendations. Jackson Lewis again submitted written recommendations regarding the modified proposed regulations and attended the Commission's related hearings. On August 29, 2006, the FEHC issued further modified proposed regulations. Final regulations are expected by the end of 2006. The complete modified proposed regulations, as well as the related Jackson Lewis comments, are available at here and here, or by contacting attorney Cynthia Filla in the Los Angeles office, FillaC@jacksonlewis.com.

As described below, many of the modified proposed regulations address compliance requirements for e-learning courses. Through our strategic partnership with Workplace Answers, Jackson Lewis can deliver personalized e-learning education specifically designed to comply with California AB 1825.

Effective Training Includes E-Learning. The new regulations provide that, in addition to conventional training, "effective training" may include: (1) "e-learning," defined as "individualized, interactive, computer-based training whose content is written, developed and approved by an instructional designer(s), qualified trainer(s) or subject matter expert(s);" (2) a "Webinar" format, or "an Internet-based seminar created and taught by a qualified trainer and transmitted over the internet or intranet in real time"; and (3) "other effective interactive training and education," including non-classroom instruction using audio, video, or computer technology.

Webinars Have Specific Interactivity Guidelines. The new regulations contain specific rules for Webinars to ensure learners participation. Employer training done via Webinars must include records demonstrating that a learner "attended the entire training and actively participated in the training's interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities."

E-Learning Training Programs Must Provide a Timely Mechanism for Answering Questions. Employers using non-classroom training, must provide supervisors with a mechanism for answering questions within a reasonable time period, but no less than two business days after the question is asked.

Training Must Be Completed In No Less Than Two-Hours. The new regulations provide that "'Two hours' of harassment training is two hours of classroom or two hours of Webinar training or, in the case of an e-learning program, a program that takes the supervisor no less than two hours to complete." E-learning programs may include book-marking features, as long as the actual e-learning program amounts to two hours.

Training Courses (Classroom and Electronic) Must Be Created and Delivered By Qualified Trainers. Program developers and trainers must have legal education or practical experience in harassment, discrimination and retaliation training and knowledge of California and federal laws prohibiting unlawful harassment, discrimination and retaliation. Jackson Lewis attorneys are so qualified.

Newly Hired Supervisors Can "Carry Over" Training. The regulations provide that new supervisors must be trained within six months of assuming their supervisory position, and retrained once every two years thereafter. However, a new supervisor who had received harassment training in compliance with AB 1825 within the prior two years only would need to be given a copy of, and be required to read and to acknowledge receipt of, the new employer's anti-harassment policy within six months of assuming the new supervisory position.

Supervisors Located Outside of California Need Not Undergo Training. While the June 20, 2006 version mandated that supervisors located outside of California undergo training, the new regulations clarify that the law applies only to supervisors located in California.

50-Employee Requirement Includes Workers Outside California. The new regulations apply to employers with "50 or more employees," which means that employers must count employees or contractors for each working day in any 20 consecutive week period in the current calendar year or preceding calendar year. There is no requirement that the 50 employees or contractors work at the same location or that all work or reside in California.

Training Year Tracking Is Permitted. The latest regulations allow employers to track compliance individually or by "training year." Under the "training year" method an employer may designate a "training year" in which it trains all supervisory employees and thereafter retrains them by the end of the next training year. However, even under the "training year" method, no supervisor shall be retrained any later than 6 months from the anniversary date of his or her last training.

Compliance Records Must Be Retained For At Least Two Years. Documentation must include the name of the supervisor, date of training, type of training, and name of the trainer, educator, or instructional designer.

Training Can Include Other Forms of Harassment and Discrimination. The newly proposed regulations clarify that training should focus on prevention of sexual harassment and discrimination, however, the training may include discussion of other forms of harassment and discrimination within the required two hours.

Depending upon the individual needs of the organization, Jackson Lewis can provide AB 1825 compliant training solutions that work seamlessly as e-based, face-to-face, or blended opportunities. For more information, contact Jackson Lewis partner and Management Training Practice Chair Michael Lotito, 415-536-6322; LotitoM@jacksonlewis.com or the Jackson Lewis attorney with whom you regularly work.

Jackson Lewis attorney Cynthia Filla assisted in the preparation of this article.