AB 1825 Sex Harassment Trainer

AB 1825 requires California employers to provide two hours of harassment training to supervisors by the end of this year. So, suddenly there's a market that needs training for about 1.7 million supervisors. And, like blowflies to a CSI corpse, a plethora of training vendors have arrived.

As employers shop the commercial offerings, it's important to remember that the mandated training is not a one-time event. After 2005, each supervisor must be retrained every two years. And, any newly hired or promoted supervisor must receive their initial training within six months.

So, companies don't only need training this year — the need is continuous.

At my job, we've gotten a good response by talking to employers about a "subscription model" for the mandatory training. In other words, we offer constant access to compliance training. The company doesn't pay per employee or per course. Instead, it's a monthly or annual fee for as much training as they need.

When you add a supervisor to the system, it assigns courses, track progress, sends email reminders as necessary, reschedules retraining, provides reports, prints certificates, documents completion, establishes a legal record, etc.

Training isn't a one-time event; consider a subscription.

Sure enough, the Labor Department complied with the law. On March 10, they announced and issued an official USERRA poster.

I'd previously expressed doubt that the new poster would be any different from the poster they issued a week ago. Well, I was wrong. Mea culpa.

The old poster is blue and white and has a red title. The new poster is blue and white and has a white title.

Is there any legal significance to the difference? No (but, we still must wait for the Littler lawyers' interpretation).

Thus, I'd recommend the old poster if you have a color printer and the new poster if you plan on printing it out in black-and-white.

One of the expert employment law firms I mentioned in an earlier post put up a news alert on the released-then-revoked USERRA poster.

According to Littler-Mendelson, the Labor Department agency "VETS has given no reason why the poster was removed, but has stated that a revised poster will be ready for downloading by March 10, 2005."

Check.

They continue helpfully, "Recent amendments to USERRA require that employers notify employees of their military leave rights. The amendments do not mandate the form of notice to be given, so employers are not required to use the VETS poster ... to meet the notice requirement. Obviously use of a VETS prescribed poster is an efficient way in which to meet the notice requirement."

Ahh, they're saying we don't have to wait for any "official" poster; that's helpful. So, perhaps the already-released poster — yes, the one VETS published-then-pulled — will satisfy the law. How about that? We've got that one, will that comply?

They continue unhelpfully, "Since the revised poster has not yet been released, comments cannot be made regarding its compliance with USERRA's notice provisions."

Well, sure, we don't want legal opinions about posters the Labor Department has not yet released, but how about a comment about the existing USERRA poster? I mean, we know VETS published a poster already; how about that one? Isn't that a good one for employers?

My point is, you're lawyers, you purport to be ready to issue opinions about a USERRA poster's compliance with the law, and with all your resources (two named partners in a firm with dozens of "shareholders" and wads of associates and a smattering "of counsel"), all you're able to say is that a not-yet-released poster (that won't even be mandatory when it comes out) may — or may not — comply.

Sadly, that stunningly-obvious point is Littler help than we expected.

The Labor Department has a page holder for the official USERRA poster:

Will it be identical to the one they'd previously posted — then deleted?

March 10, 2005 is 90 days after Bush signed the VBIA, the very last day for the Department to comply with the law by issuing the poster. So, we have an indication that the Department is planning to comply with the law.

Of course, it may not be fair to snark at the Department for failing to exceed expectations and slacking off on public service. After all, only today the Department posted a new picture of Secretary Chao with the President of Uruguay. No one was expecting that picture. That's going beyond the call of duty. I'm sure it was a surprise to the employers, military personnel, National Guard and Reservists who don't know their USERRA rights.

AB 1825 says the sex harassment training for supervisors "shall include information and practical guidance [and] practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation...."

So, it may be useful to note that three women have sued the Gorilla Foundation for sexual harassment, claiming that they were encouraged to expose their nipples to Koko, a 33-year-old sign-language-talking female lowland gorilla.

The women's lawyers say Foundation President Dr. Penny Patterson interpreted Koko's signs as a cross-species come-on and pressured the women into girl-on-girlrilla sex play. One woman who put out for the primate "took it as a disagreeable duty of her employment."

The Foundation's lawyer (and coincidentally a law school comrade of mine), Todd Roberts, says that the charges are bunk.

Significantly (from a legal standpoint and thus for this blog), in 2003 the Legislature passed a law (AB 76) to clarify that employers can be held liable for failing to prevent employees from being harassed by non-employees - and presumably, non-human non-employees as well.

As the women's attorney Stephen Sommers says, "This is not about Koko asking people to take their clothes off. This is about Penny Patterson asking people to take their clothes off. If Koko does want it, Penny should discourage that behavior. There are better and more humane ways to bond with a 350-pound gorilla."

So, when providing practical examples of sexual harassment in a training, remember the primate potential and cover Koko. As the defendant Dr. Patterson says, "The differences between humans and gorillas are greatly overshadowed by what we have in common - and by communicating with them, we can learn as much about our own true nature as theirs."

Okay, that's weird, the Labor Department now has made the USERRA poster unavailable where I got it at their site (see).

So, I've updated the links in my blog entries to the new USERRA poster I downloaded yesterday and saved at my job.

Why'd they take it down? Are there going to be corrections?

I doubt it. (The page says the poster was only "temporarily removed.") My guess is that it didn't fit the Department's talking points or the news cycle, and they plan a later release. You know, better press and publicity.

But how does removing the poster serve US employers, employees, or the military?
AB1825 employment law compliance

The US Labor Department had until March 10, 2005 to implement the Veteran's Benefit Improvement Act of 2004 (VBIA), which required the Department to issue a new official poster covering military leave rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

Surprisingly, the Department beat the deadline and the new USERRA poster is now available. Every employer in the US needs to post this new poster.

I know it's off-topic (this blog's about sexual harassment), but my primary goal is to help employers. Employers are required to comply with the posting requirement as soon as a poster is available (and, obviously, it is). Strangely, the Labor Department hasn't announced the new poster.

For contrast, since I found the new poster on its site, the Labor Department has publicly announced:

• Secretary of Labor Elaine Chao will attend the Inauguration of the President of the Oriental Republic of Uruguay.
• Secretary of Labor Chao and Assistant Secretary of Labor Ann Combs each gave statements to Congress about the Administration's pension reform proposal.
• The Department of Labor released a report that highlights the importance of its role in supporting America's workforce.

But, promptly publicize a poster that is required by law for all employers and that will help all working service men and women (and employers) know their rights?

Not a priority.