AB 1825 Sex Harassment Trainer

As the December 31 deadline approaches, the tension and pressure we're getting from employers trying to finish their AB 1825 training (or get it started) is growing increasingly tangible; it feels almost like there's a swarming of bees headed this way.

Last spring, we had about 50 log-ins during a single day for training. When I checked a little over a month ago, we had 597 log-ins that day. Today we had 1,493 log-ins for our training.

And there's still 22 business days left....

...until the December 31, 2005 deadline for AB 1825 training.

And have a happy Thanksgiving (my turkey is currently soaking in brine).

...until the December 31, 2005 AB 1825 deadline.

Warning: blatant commercial: I'll be presenting a live two-plus hour AB 1825 training on four occasions in December; twice on Tuesday the 13th (at 9 a.m. and 1:30 p.m.), and twice on Thursday the 15th (at 9 a.m. and 1:30 p.m.).

We'll use the LawRoom Portable Classroom program for content, plus use "clickers" (remote response units) so everyone attending can participate and interact in the multiple Case Studies. Plus, the votes are automatically tabulated, and the software creates a graph that shows you how the class responded. Lot's of fun and educational, too.

It'll be at Treat Towers in Walnut Creek (near BART). Interested? Call 1-800-652-9546.

...until the December 31, 2005 deadline for the initial AB 1825 training.

However, if you want a "real time" countdown, including all the days (business days, weekends, holidays, etc.) left, check out the Employers Group homepage. They've got a little Flash applet that's counting down the days-hours-minutes until New Years.

So, although by my count there's only 32 business days left to train supervisors before the deadline, the Employers Group currently says there are "046 days.13 hours.39 minutes" remaining.

I guess that's more useful than my count if your supervisors will be undergoing training on Thanksgiving or Christmas.

AB 1825 requires training by instructors with "knowledge" and "expertise." So, can an HR generalist or company manager provide the training?

We may get some answers when the official regulations are released next year. However, until then, let me note one case where a company had a problem because of who they had do their training.

In Cadena v Pacesetter Corporation (10th Cir. 2000), a federal Court found a company (Pacesetter) liable for sexual harassment, in part because the company’s sexual harassment trainer lacked expertise about certain issues in sexual harassment law.

The Court ruled that the inadequate knowledge of the company’s sexual harassment trainer (who was a company telemarketing manager named Ann Humphrey) was evidence that the company didn’t care about the problem of sexual harassment.

The Court wrote: “Based on Humphrey's admitted ignorance about sexual harassment, a jury could reasonably infer that Pacesetter failed to make good faith efforts to adequately educate its employees about its non-discrimination policy and Title VII.”

... until the December 31, 2005 deadline.

Enjoy your Veterans' Day holiday.

Here's a real question from an HR Director: "I have a newly hired manager who received training at his previous company 6 months ago. Can that training count for our company, or do they need to do it again with my company? If it counts what kind of proof would we need?"

AB 1825 requires each employer to provide training to its supervisors — it doesn't permit supervisors to be "certified" that they've been trained or excuse supervisors who have already been trained.

Basically, the question is: Did your company train its supervisors as required by AB 1825? (It's not "Did your supervisors complete AB 1825 training somewhere?")

Unfortunately, if your organization hasn't provided the training itself, I do not believe that your organization has complied with the law EVEN IF the supervisor completed AB 1825 training elsewhere.

A Jackson Lewis lawyer recently got his hands on a copy of the draft regulations being considered by the Fair Employment and Housing Commission (FEHC). The FEHC is responsible for issuing regulations to help enforce AB 1825.

Significantly, the draft regulations (which still have to be officially proposed, then opened for public comment, then revised, and then finalized) indicate that any "substantial good faith effort to comply" by employers with the law will be sufficient, even if the final official regulations require something else. In other words, if an employer makes a "substantial good faith effort to comply" by the end of 2005, it won't have to re-train all its supervisors, even if the training missed some element specified in the (yet-to-be-issued) regulations.

Additionally, the draft regulations indicated:

• that employers must count employees not in California when determining whether to comply with AB 1825 (i.e., even if a company has fewer than 50 employees in California, it would have to provide training if it has more than 50 employees total counting both those in-and-out of California), and
• that employers must train all personnel who "supervise" California employees, even if the supervisor does not work or reside in California (i.e., if your IT manager is in Bangalore, you have to give that manager AB 1825 training if the person supervises IT workers in California).

I've received multiple questions recently about whether employers are required by AB 1825 to train "independent contractors" (who are also known as consultants, ICs, 1099-workers, etc.).

My opinion is that anyone who qualifies as a FEHA "supervisor" must receive training by the company, regardless of the worker's status as an employee, independent contractor, volunteer, etc.

Basically, AB 1825 says to train all "supervisors," and FEHA defines the term as:

"any individual having the authority ... to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if ... that authority is not of a merely routine or clerical nature, but requires the use of independent judgment." [Government Code §12926(r)]

So, if an independent contractor does any of this laundry list of activities, including simply "directing" your employees, or "assigning" their work, or "recommending" these actions, then you're required to provide training to that individual.

...says the article in the SF Chronicle. link

Plus, the story quotes me, my boss, and has nice things to say about my company's online training program.

And, it quotes famous Stanford professor Paul Ehrlich, who took our course: "Some of the questions were of the driving-test type, but most weren't, and some of the cases were quite interesting."

In a previous correspondence (not mentioned in the article), Ehrlich had also written about our program to a colleage: "It actually is not a waste of time once it goes. Paul."

That's what I call praising by faint damn.

Anyway, check out the article.

The initial compliance deadline for AB 1825 requires all individuals who were employed in a supervisory capacity on July 1, 2005 to complete their two-hours of training by December 31, 2005.

That's 35 business days away.

Have your supervisors been trained?