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AB 1825 Sex Harassment Trainer

A free resource for California employers about the sexual harassment training law (AB 1825).

Trainer or lawyer

Your harassment trainer should not be your lawyer.

I don't mean that harassment trainers shouldn't be lawyers. In fact, under AB 1825, they probably need to have legal training. However, your company's lawyers, be they in-house counsel or an external lawfirm, should not be involved in the business of your company's management of its employees (specifically, providing workplace training on corporate conduct and anti-harassment policies).

Because training is mandated by law, an employee's training may be at issue in a future lawsuit. If so, a company's trainer may be called on to testify to the fact of the training, the content and interactivity of the program, the experience of the trainer, the time spent, and other issues of compliance under AB 1825.

This might make you think that it would be a good idea to have your lawyer also be your trainer. However, it's never a good idea to have a lawyer who you might need to be a witness. That's because:
  • it may waive or destroy the attorney/client privilege (if anything is disclosed in the training, such as an incident of sexual harassment, the trainer is not serving in the role of an attorney but as a teacher, and the training is not litigation-directed, so the disclosure is not a confidential client/attorney communication nor privileged work-product);
  • it creates a conflict of interest (a trainer/witness is supposedly a neutral expert; your lawyer is known to be your advocate and solely serving your interests);
  • it may result in the disqualification of the attorney (an employee can ask a court to prohibit a company's trainer/lawyer, or the trainer's entire law firm, from later representing the company in a lawsuit).

To be safe, it's best to keep your trainers and lawyers separate. The former focus on providing effective educational experiences and make no money if the training fails to prevent an incident. The latter focus on representing clients in litigation and make no money if the training succeeds in preventing an incident.
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