AB 1825 Sex Harassment Trainer

Gift Cards & Tax Hassles

2011-02-17T16:11:00.000-08:00

If you buy AB 1825 training from the California Chamber, they say they'll give a $5 Starbucks gift certificate to supervisors who complete their course. This may sound like a good idea, but it raises a variety of potential problems.

Although the most common problem with "gifts" is the potential for raising “conflicts-of-interest,” that isn't the case when the gift is disclosed to the employer and the employer authorizes the gift to reward an employee.

But any gift -- even a $5 gift certificate -- may create problems because it's:

considered wages for the employee (and thus raises overtime and recordkeeping issues),
taxable to the employee, and
taxable to the employer.

Generally, any monetary or other benefit given to employees for their services is considered "wages." Wages must be recorded, paid timely, and a wage statement (showing applicable deductions) must be provided. Plus, it must be included in non-exempt employees' overtime pay.

For example, the US Labor Department's Opinion Letter (2-14-2001-6) says a $50 finder's fee paid to cashiers for discovering/recovering bad credit cards is included in regular rate and thus raises the overtime premiums owed by the employer. Another Opinion Letter (7-05-2005) says that bonuses paid by an outside vendor (and not employer) are included in the employee's regular rate and thus raises the overtime premiums owed by the employer.

Second, most benefits are considered taxable income. As noted in the IRS Publication 15b: "Any fringe benefit you provide is taxable and must be included in the recipient's pay unless the law specifically excludes it. Section 2 discusses the exclusions that apply to certain fringe benefits. Any benefit not excluded under the rules discussed in section 2 is taxable."

One exclusion is for small gifts (e.g., a turkey at Thanksgiving or Christmas). However, the IRS says these "de minimis" gifts are excludable only when they don’t have a cash value. For example, an IRS technical advice letter (TAM 200437030) indicates that an employer's gift to employees of (1) a holiday turkey is not taxable, but (2) a $35 grocery coupon is taxable. As the “de minimis” section of Publication 15b says, “Cash and cash equivalent fringe benefits (for example, use of gift card, charge card, or credit card), no matter how little, are never excludable as a de minimis benefit....”

Finally, the gift is also taxable to the employer. This is true because the employee's receipt of any job-related gift is legally the property of the employer, and thus the employer has legal entitlement (constructive possession) of the gift. According to Labor Code 2860: "Everything which an employee acquires by virtue of his employment, except the compensation which is due to him from his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment." Since the gift "belongs" to the employer, the employer has to account for the cash-equivalent income.

So, while we encourage employers to offer incentives to employees to complete mandatory training courses, it may make more sense to award chocolate, pats-on-the-back and "atta boys!" or PTO rather than a gift certificate with a monetary amount.

Does it violate Title VII to sexually harass a communist?

2010-06-02T15:43:00.000-07:00

I don't think so (at least not if they're party members).

Although the federal anti-discrimination law Title VII has been interpreted to prohibit sexual harassment as an "unlawful employment practice," the law also contains an express exclusion for Communist Party members. Subsection 2000e-2(f) says:

Members of Communist Party or Communist-action or Communist-front organizations:
As used in this subchapter, the phrase “unlawful employment practice” shall not be deemed to include any action or measure taken by an employer, labor organization, joint labor management committee, or employment agency with respect to an individual who is a member of the Communist Party of the United States....

This appears to exempt any violation of Title VII if it's taken "with respect" (gotta love that) "to ... a member of the Communist Party...."

Now I do not mean that Title VII simply permits discrimination based on the fact that someone is a communist (e.g., "I'm not hiring you because you're a commie"), but that it allows an employer to, for example, sexually harass or racially discriminate against a worker without liability if the worker is a party member.

In other words, Title VII permits an employer to say: "I'm not hiring you because you're a woman, and I may have grabbed your breast, and called you the 'n-word,' but you're a communist so you can't sue me." The fact that a worker is a communist means it's not a violation of Title VII to sexually harass, racially discriminate, ethnically insult, fail to religiously accommodate, or otherwise create a hostile work environment based on their (ordinarily) protected characteristics.

Perhaps unsurprisingly, I haven't seen much online discussion or note of this exception (other than the occasional reference to the text of the law). Likewise, I'm not aware of any case bumping a federal bias/harassment claim because the employee was a card-carrying communist.

(Plus, it's important to remember that California's Fair Employment and Housing Act does not contain a similar exemption. Additionally, harassing a communist may violate state Labor Code sections 1101-1102 as an attempt to coerce an employee's politics).

Even so (and while not wanting to excuse any harassment or discrimination because of the target's politics), Title VII's communist exemption is a potential defense to federal claims for employers who employ — and discriminate against or harass — fellow travelers.

Religious organizations must train

2009-12-17T18:03:00.000-08:00

While religious organizations are exempt from some of the anti-discrimination laws, they are not totally exempt.

For example, federal Title VII does not contain an express exemption for religious organizations. (Even so, courts have carved out a so-called "ministerial exception," recognizing the First Amendment right of religious organizations to determine who may speak on their behalf. For example, see Bias Not a Crisis in the Diocese.) Thus (except for "clerical" positions), religious organizations may be liable for discrimination and harassment under federal law.

California's FEHA has a much broader, but not absolute, exemption for religious associations and corporations. This is true because FEHA's definition of "employer" for both discrimination (Gov. Code §12926(d)) and harassment (Gov. Code §12940(j)(4)) exclude most religious associations and corporations (unless they operate a school or health care facility, in which case they may be covered).

Even so, the AB 1825 law (Gov. Code §12950.1) and regulations have their own separate definition of employer that does not include this exclusion for religious organizations.

Gov Code §12950.1(c) says: "For purposes of this section only, 'employer' means any person regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract...."

Similarly, the FEHC's AB 1825 regulations also do not exempt religious organizations. Title2 CCR §7288.0(a)(4) says an AB 1825 "employer" includes "any person engaged in any business or enterprise in California, who employs 50 or more employees to perform services for a wage or salary or contractors...."

As a result, religious organizations are AB 1825 "employers" and are not exempt from its training mandate. So, although they may be exempt from most of FEHA, religious organizations must provide AB 1825 training and may be liable under Title VII.

This analysis was confirmed by Ann Noel, the Fair Employment and Housing Commission's Executive and Legal Affairs Secretary (the executive officer and principal legal advisor for the Commission, and its chief administrative law judge) in conversation with this blogger on December 17, 2009. She explained the "carve out" for religious organizations under FEHA is not available under the AB 1825 law or regulations.

More than sexual harassment

2009-10-07T17:37:00.000-07:00

Should your AB 1825 training include subjects other than "sexual" harassment, and cover harassment based on race, religion, disability, and other protected characteristics? Yes, absolutely.

Although much of the popular focus of AB 1825 (Government Code section 12950.1) is on "sexual harassment" training, the content required to comply with the official AB 1825 regulations issued by the Fair Employment and Housing Commission (FEHC) is more complex.

According to 2 CCR section 7288.0(c), "the training mandated by California Government Code section 12950.1, shall include but is not limited to..." and then goes on to list eleven items. While most of the items refer to issues involving sexual harassment (including: statutes, cases, types of misconduct, remedies, strategies to prevent, practical examples, and company resources), the two hour requirement is not satisfied by sexual harassment alone.

For example, the FEHC regulation specifies the two hours must include "FEHA and Title VII statutory provisions and case law principles concerning the prohibition against and the prevention of unlawful sexual harassment, discrimination and retaliation in employment," the "limited confidentiality of the complaint process," the "employer’s obligation to conduct an effective workplace investigation of a harassment complaint," "[t]raining on what to do if the supervisor is personally accused of harassment," and the "essential elements of an anti-harassment policy...."

As stated in subsection (c)(2), the topics of "discrimination and retaliation in employment" as prohibited by "FEHA and Title VII" must be included, and these laws both forbid job bias not only based on sex, but also on race, color, religion, national origin, etc. Thus, subsection (c)(1) says, "In addition to a definition of sexual harassment, an employer may provide a definition of and train about other forms of harassment covered by the FEHA, as specified at Government Code section 12940, subdivision (j), and discuss how harassment of an employee can cover more than one basis."

Under Government Code section 12940, subdivision (j), harassment is forbidden when based on "race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation." Thus, all these types of harassment are permitted to satisfy the two hour requirement.

Moreover, as the regulation states, "harassment of an employee can cover more than one basis." This has been a growing trend in litigation; for example:
--Harassment Grand Slam
--Sexual & Nonsecular Harassment

Basically, employers should not consider sexual harassment to be so unique a type of misbehavior that it requires special training, while other types of job harassment (racial, religious, disability-related, ageist, etc.) do not. Instead, employers are required to take all reasonable steps to discourage all types of harassment, discrimination, and retaliation (including training), and should take advantage of the AB 1825 regulations to equally provide training to prevent all types of harassment, discrimination, and retaliation.

Thus, Government Code section 12950.1(f) says: "The training and education required by this section is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination."

Preventive education

2009-07-23T20:35:00.000-07:00

How does the federal government inform the public about the anti-harassment laws? The EEOC says bad publicity about sued employers helps.

“The public nature of law enforcement can serve as one effective form of preventative education,” said EEOC Regional Attorney Robert Canino.

Canino was talking about a recent pregnancy discrimination case involving Studio 69, a nightclub in El Paso, Texas. According to the agency, when the club learned a bartender was pregnant, it place her on indefinite “pregnancy leave” – or as the EEOC describes the situation: “it fired Crystal Aguilar from her job.”

The take-away lesson is that treating an employee differently because of her pregnancy violates Title VII when “the employer had neither requested nor received any information from her doctor regarding her physical ability to perform her job duties.”

The EEOC’s announcement cited a fetal-protection chestnut, the 1991 case International Union v. Johnson Controls. “The United States Supreme Court explicitly held that the decision to work while being pregnant was reserved for each individual, not her employer, to make,” explained EEOC lawyer Tisha Dominguez.

New AB 1825 questions

2009-07-18T10:00:00.000-07:00

As we enter the last half of the year (only 166 days left in 2009 as I write this), the AB 1825 train is picking up steam. Here are two AB1825 compliance question from California employers that I answered in the last couple of days.

1. We hired some new supervisors last November (2008) and they completed sexual harassment training in February (2009). Our training years were 2005 and 2007, and we've set a training for everyone in October 2009. Do the new supervisors have to train again this year to join our training year calendar?

Answer: No. AB 1825 requires supervisors be trained:
(1) within six months if they're newly hired or promoted, and
(2) every two years.

As long as these requirements are met, they don't have to be trained twice in any single year. Under the "training year" tracking system, your supervisors can complete the required anti-harassment anytime during 2009 (including in February 2009) and you'll be in compliance with the regulations.

2. Do we have to train supervisors who are "temporary"?

Answer: AB 1825 does not have an exception for "temps" or any other type of supervisor. If someone meets the legal definition of "supervisor," they must be trained, regardless of their classification or employment status.

The AB 1825 definition of "supervisor" is based on the Fair Employment & Housing Act (FEHA) definition at Government Code section 12926(r):

"Supervisor" means any individual having the authority, in the
interest of the employer, 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, in
connection with the foregoing, the exercise of that authority is not
of a merely routine or clerical nature, but requires the use of
independent judgment.

Basically, they don't have to even be your employees: if the boss' wife or a powerful shareholder or a non-employee consultant meets the legal description of "supervisor," your company is expected to provide AB1825 training.

Still, it's important to note that the law gives you six months to train new supervisors, so you're not technically out-of-compliance if an untrained supervisor hasn't worked (doesn't work?) for six month. Even so, it may not be "reasonable" to avoid providing training to temps, and (independent from your duty to train under AB 1825), FEHA always requires employers to take every reasonable step to prevent harassment from occurring.

Piercing punitive liability

2009-06-22T18:36:00.000-07:00

Although the law protects everyone – both sinner and saint – from sexual harassment, Courts sometimes rule against victims (most often women) when they’ve engaged in sexualized behavior in the workplace.

Often, the Court finds the abuse suffered by these “bad girls” wasn’t enough to interfere with their ability to do their jobs. As explained by the EEOC, to qualify as sexual harassment, misconduct generally must "alter the conditions of the victim’s employment and create an abusive working environment."

However, Courts sometimes limit recoveries for female employees who participate in sexualized behavior at work, ruling the abuse they were exposed to didn't “alter” their working conditions; see the 2008 Brief: Bad Girls Can't Complain.

Last month, a federal Court in Delaware made a similar decision. In Laymon v. Lobby House, waitress/bartender Shannon Laymon sued the Lobby House pub for sexual harassment. She claimed management made sexist remarks and encouraged sexual behavior (including stripping) by female employees. She convinced the jury; they awarded her $500 for sexual harassment, plus $100,000 in punitive damages (which are designed to punish the employer and to serve as a deterrent).

The pub appealed, challenging the amount of punitive damages. After all, Lobby House argued, Laymon herself participated in skeezy behavior at the pub. “While at work, Laymon admittedly displayed her vertical hood piercing to two co-employees,” the Court wrote. It explained in a footnote: “A vertical hood piercing is a piercing in the clitoral area.”

And, based in part on her workplace genital-jewelry display, the Court cut her punitive damage award by 75 percent.

“Balanced against [the employers’ conduct] is testimony that Laymon participated in inappropriate conduct," the Court wrote, "and, that Laymon only complained of sexual harassment after she was confronted by management regarding her negative behavior. In balancing the ... factors, the court believes that reducing the amount of the punitive damages award is warranted, particularly in light of the conduct of both Laymon and Lobby House. As a result, the court will reduce the jury’s punitive damages award from $100,000 to $25,000....” [Laymon v. Lobby House (5/1/2009) USDC Delaware]

Sex stereotyping stupidity

2009-06-17T18:39:00.000-07:00

Are you looking for something new for your 2009 AB 1825 sexual harassment prevention training? Here’s one idea: Teach supervisors to avoid making stupid statements based on gender stereotypes.

Often, discrimination cases based on sex stereotyping relate to “family responsibility” bias — another way of saying that employers commit sex discrimination by assuming female (and not male) workers will be family caregivers and thus less involved with their careers (see EEOC Guide to Caregiver Bias).

Of course, it’s not only women subject to sex stereotyping. For example, a 2009 case says an employer may be liable for sex discrimination because a supervisor presumed a male worker was guilty in a "he said/she said" sexual harassment situation (see 'Men Are Harassers' Is Biased).

Still, it’s female (and especially pregnant) workers who are most often subject to discrimination due to traditional beliefs about family duties. Here are several examples of stupid statements by supervisors involving illegal sex stereotyping of women workers.

After a woman becomes a new mother (or step-mother), don’t say: “Go home and be with your baby,” or “Mothers cannot perform as well as men, or women without children.” (see 'New Moms Should Stay Home' Is Biased)
Don’t deny a promotion to a mother of four saying: "It was nothing you did or didn't do. It was just that ... you have the kids.” (see 'Moms Less Involved' Is Biased)
Don’t ask women (but not men) about family plans, such as: "You're not going to get pregnant again, are you?” (see $2.1M for Mommy Bias)
Don’t give unwelcome family advice: “There is no way you can be a good mother while achieving what I aspire.” (see "Good Mother" Advice = $75K)
Don’t insult working women: "Mothers like you caused Columbine." (see Don't Disrespect Moms)
Don’t reject pregnant job applicants by saying: "Come back after you have the baby." (see "After the Baby" Costs $220K+)

Pregnancy discrimination swells

2009-06-09T21:01:00.000-07:00

One type of sex bias that's seen a steady rise — and no sign of let up — is discrimination based on pregnancy. Since only women become pregnant, treating workers differently simply because they're pregnant leads to liability for sex discrimination.

It's a popular type of discrimination; employers worry about liability (to the woman, others, and the baby); some managers think pregnant women should rest/stay home/feather a nest/whatever rather than work. Still, it's illegal.

The Equal Employment Opportunity Commission (EEOC) regularly reports on it's pregnancy bias cases. Here are some from 2009:

And here's a case brought by the Department of Justice (it handles bias complaints involving schools):

Justice Department Settles Pregnancy Discrimination Lawsuit Against the Board of Education of the City of Chicago (May 29, 2009)

More harassment nationwide

2009-06-03T19:23:00.000-07:00

The US Equal Employment Opportunity Commission (EEOC) received 95,402 workplace discrimination complaints in 2008. This was a 15 percent increase from the 82,792 complaints made by employees to the federal agency in 2007.

These complaints included:

28,372 sex discrimination charges
13,867 sexual harassment charges (15.9 percent from men)
954 Equal Pay Act charges

See the EEOC Statistics page for all the details.

Or, for a visual presentation of bias complaint trends, news agency MSNBC posted a nice chart showing EEOC claims 1998-2008.

What's new for 2009?

2009-06-01T18:06:00.000-07:00

Since we're now smack dab (or "dab smack" as Obama has written) in another AB1825 training year, it's time for me to start posting.

I haven't updated this blog since December 2007 (the last AB 1825 "training year"), since the archived information was still pretty good and nothing new had occurred; no new regulations, no change in the law, same old same old.

However, now that California employers are once again in full swing trying to comply with AB 1825, I figure to provide some current (and hopefully useful) information.

For example, if you want to prevent harassment in California, it's helpful to know what harassment is occurring. One source to learn what harassment employees are complaining about is the state Department of Fair Employment & Housing (DFEH), which collects and investigates bias complaints.

Basically, if you want to know what harassment problems need to be addressed in California, the DFEH statistics provide some clues.

First, complaints are way up from 2007. In 2008, the DFEH received 18,785 employment bias complaints. That's almost 1,800 MORE than the total number of employment AND housing bias cases combined that the DFEH received in 2007.

Out of these 18,785 complaints, 7,972 related to sex bias

999 involved pregnancy bias
821 involved sex orientation bias
3,863 involved sexual harassment
2,289 involved other sex discrimination

The remaining major categories of bias complaints included:

6,844 disability
5,697 retaliation
4,208 race/color
3,655 age
1,937 national origin/ancestry
579 religion
300 marital status

For more details, see the DFEH 2008 report.

We got Boing'd

2007-12-23T09:42:00.000-08:00

The AB 1825 course I wrote was mentioned in the blog Boing Boing, the hip-cool-pop-wow Directory of Wonderful Things.

In a post called Arnold's Fables: What Koko Wants, Dale Dougherty (editor and publisher of Maker Media) wrote in about taking an AB 1825 training course in which he read about Koko, the sign-language talking great ape. Then, he cites the text from our program (if you take our course, he's quoting from an exercise in Part III entitled "Case Study: Gorilla Suit")!

For those who haven't taken our course, you can also read our story about the case: Gorilla Suit Exposes Fetish.

I'd like to think the citation in Boing Boing is evidence of our success at creating a contemporary and memorable program. We know supervisors generally do not like being required to spend two hours away from their primary duties thinking about harassment, and we hoped our course would be informative, engaging, provocative, and entertaining. Having my text quoted in Boing Boing helps me feel we achieved our goals.

Excellent AB 1825 Review

2007-07-31T14:03:00.001-07:00

LawRoom recently republished its detailed review of California's anti-harassment training requirements as specified by AB 1825 and as modified by the recently-approved regulations issued by the Fair Employment & Housing Commission (FEHC).

See LawRoom FEHC Regulations for AB 1825.

It's an excellent resource to answer questions, such as:

Will showing a video combined with a group discussion satisfy the training requirement? (no)
If 2007 is your "training year" for tracking purposes, but you trained some supervisors in 2006, can you have another "training year" in 2008? (no)
Do you always have to train newly-hired supervisors within six months (not always, but you probably should)
What kind of records do I need to make and keep for AB1825 (and for how long)? (get your answers here...)

FEHC Says Regs Approved!

2007-07-19T16:24:00.000-07:00

Despite what they told me yesterday, the Fair Employment & Housing Commission's AB 1825 harassment training regulations were approved.

Today, the FEHC issued this email message: "The Fair Employment and Housing Commission announce that the sexual harassment training and education regulations submitted to the Office of Administrative Law have been approved. We anticipate that, after the mandated publication period, the regulations will become effective on August 17, 2007."

Here's the bottom line for employers: If you're going to do your AB1825 training this year, do it before August 17, 2007. On that date, the official regulations take effect which (1) establish legal standards for all training conducted after that date, and (2) expressly state that all training done in good faith prior to that date is "deemed" to comply with the law.

After August 17 you might have to prove that your training complied with all of the specific requirements of the law and regulations; but training completed before then is legally assumed ("deemed") to have complied with these rules under FEHC regulation section 7288.0(e), which says: "An employer who has made a substantial, good faith effort to comply with section 12950.1 [AB 1825] by completing training of its supervisors prior to the effective date of these regulations shall be deemed to be in compliance with section 12950.1 regarding training as though it had been done under these regulations."

So, if you want to ensure (get "deemed") compliance, train in good faith before the "effective date of these regulations" (i.e., August 17, 2007).

Time's up, but Ann's on vacation...

2007-07-18T16:14:00.000-07:00

Okay, so it's nearly three years after AB 1825 was enacted, and two years after the Fair Employment & Housing Commission (FEHC) started working on its regulations, and almost three months after the FEHC issued the regulations. Plus, we've waited 30 working days after the FEHC submitted the regulations for final approval by the Office of Administrative Law (OAL), and so....

Nothing.

Did the OAL approve the regulations? The FEHC won't say. Why? Because Ann Noel, the FEHC Executive and Legal Affairs Secretary, is on vacation until Monday. Any announcement about the FEHC regulations will have to go through Ann, says the FEHC spokesperson.

The law affects every California employer with over 50 employees and approximately 1.7 million supervisors. But, what's that compared to ensuring that Ann gets her rest before everyone gets to know what the law is?

29 days and counting...

2007-07-17T15:17:00.000-07:00

On June 5, 2007, the Fair Employment and Housing Commission (FEHC) submitted its AB 1825 regulations' "regulatory package" to the Office of Administrative Law (OAL) for final approval, which the FEHC says "has 30 working days to review and approve the regulations or disapprove them and require further changes."

By my count, today is "working day" 29.

Will the regulations fiiiiiiiiiiinalllly be approved tomorrow?

We're approaching the third anniversary of Arnold's signing of AB1825 (September 29, 2004), and more than halfway through the second compliance year (i.e., 2005 and 2007). Let's hope the FEHC can get its regulations enacted before too much longer.

New Federal Minimum Wage Poster

2007-07-03T12:00:00.000-07:00

A new federal minimum wage poster is now available from the US Department of Labor in anticipation of the July 24, 2007 (and subsequent two years') minimum wage increase.

And, for those keeping up with the AB 1825 regulations, on June 5, 2007 the Fair Employment and Housing Commission (FEHC) submitted the "regulatory package" (the regulations it adopted on April 23) to the Office of Administrative Law (OAL), which has 30 business days to approve or reject the package, and which (if approved) go to the Secretary of State to take effect 30 days later. Seeing how we're nearing the end of the OAL's 30 days, we might see the regs (if approved) actually become effective sometime in the middle of August 2007 (almost three years after the Governor signed AB 1825 in September 2004).

FEHC finalizes regs - 2007 version

2007-04-26T10:49:00.000-07:00

Yes, they did it again. According to the Fair Employment & Housing Commission's AB 1825 proposed regulations page,

"After considering comments it received to its March 27, 2007, modified harassment training regulations, the Commission adopted these regulations as its final proposed regulations at its April 23, 2007 Commission meeting. These regulations interpret Government Code section 12950.1 [A.B. 1825], which requires sexual harassment training for supervisors of employers with 50 or more employees. FINAL PROPOSED REGULATIONS (pdf)."

So, the FEHC will once again submit "final proposed regulations" to the Office of Administrative Law for review, and we'll probably get the final (for gosh sake please make it so) official regulations in another 30 days.

Form I-9 expires

2007-04-13T15:36:00.000-07:00

Employers are required by federal law to complete an I-9 form to verify all new employees' eligibility to work in the US. However, on March 31, 2007, the official I-9 form "expired."

(Or, at least, the OMB number at the top of the form expired.)

Under the Paperwork Reduction Act, you generally don't have to complete paperwork that doesn't have an un-expired OMB number. Even so, employers are still required to verify employment eligibility for all new employees. So, they should keep using the "expired" form until a new one is issued.

For more info, check out the LawRoom Brief: How I-9s Aren't Like Milk.

Latest FEHC regs revision

2007-03-30T16:33:00.000-07:00

The Fair Employment and Housing Commission did it again; they issued another proposed revision of the AB 1825 regulations. Here's a link to the latest proposed regulations (3/27/07 version) at the FEHC site.

The revised regulations no longer separate the jobs of "qualified trainer" and "subject matter expert"; now, everyone who will be qualified to train (or to prepare training materials, or to answer questions from students), must satisfy the requirements to be a "trainer." This basically requires two years' experience providing harassment training or consulting.

Thus, the lastest revisions set stronger standards for AB 1825 training providers than the FEHC's original proposed regulations (11/14/06 version), but not as rigorous as the last set of proposed regulations (2/27/07 version).

The latest proposed regs are now back open for public comment until April 16, 2007. The Commission's next action (and perhaps the final-final-final-this-time-I-mean-it-final version of the AB1825 regulations) will occur a week later at the FEHC meeting on April 23, 2007.

FEHC fixes typo

2007-03-05T16:15:00.000-08:00

In my last post, I noted a typographical error in the new AB 1825 regulations. It's fixed now.

An erroneous reference to a subdivision (D) rather than (C) prompted the Fair Employment and Housing Commission to reissue its recently-proposed AB 1825 regulations again (this time sans typo).

Rather than await public comment (or, to head off at the pass a stampede of typo-related comments), the Commission corrected itself and atoned (i.e., as stated in its email, "The Commission apologizes for any confusion this may have caused.").

FEHC issues revised regs

2007-02-27T16:17:00.000-08:00

In response to the disapproval of its prior proposed rules, the Fair Employment and Housing Commission issued revised AB 1825 regulations today. Little has changed.

The new revisions clarify the requirements to be a "subject matter expert" by, basically, requiring all "SMEs" to have three years' experience advising employers about harassment, discrimination, and retaliation. (I don't know why three years' advising employees is not recognized as qualifying experience; it should be. Either the FEHC hasn't noticed this or else they're in bed with management consultants who want to avoid competition from employee consultants.)

The revisions also raise the standards for AB 1825 qualifying trainers, by requiring them to be SMEs or to have three years' experience providing training on AB1825 topics.

Finally, there's also a typo on page 3 of the revisions: Subdivision (a)(8)(C) refers to subdivision (a)(10)(D), but the reference should be to subdivision (a)(10)(C).

The revised regulations are back open for a 15-day public comment period, and the FEHC is next expected to act at their March 27, 2007 meeting.

FEHC Regs Rejected

2007-02-15T16:58:00.000-08:00

The Fair Employment and Housing Commission (FEHC) proposed regulations for AB 1825 were rejected by the California Office of Administrative Law (OAL). The OAL is a state agency that reviews (and must approve) all proposed regulations.

According to the OAL, the proposed rules violated the requirement that regulations be "clear." Specifically, OAL said the FEHC's proposed definitions of the terms "subject matter expert" and "qualified trainer" could not be clearly understood.

In response, the FEHC announced that it would revise the regulations to "clarify" the disputed definitions and comply with the OAL's requirements. Further changes and a potential "final" revision of the regulations may be announced at the FEHC's March 27, 2007, meeting.

Note: It's important to remember that AB 1825 is still valid and remains in effect; only the FEHC's proposed regulations were suspended. Even as we await the FEHC to clarify its regulations, California employers must continue to provide anti-harassment training to supervisors every two years.

2007 California minimum wage poster

2006-11-29T16:06:00.000-08:00

Are you a California employer with an unsightly stain on the wall in the employee breakroom?

You can solve your problem and be in compliance by using the newly-issued 2007 California minimum wage poster.

FEHC issues final regulations

2006-11-22T10:34:00.000-08:00

The Fair Employment and Housing Commission (FEHC) adopted the most-recent version of its proposed rules for AB 1825 mandatory harassment training in California. Here is the text of the final FEHC regulations.

The FEHC says: "The Commission will now submit a regulatory package to the Office of Administrative Law (OAL) for its review of these regulations. OAL has 30 days to review and approve the regulations or disapprove them and require further changes. Once approved, OAL sends the regulations to the Secretary of State and the regulations become effective 30 days thereafter. Thus, the Commission estimates that its sexual harassment training regulations, if approved by OAL, will be effective approximately February 1, 2007."

If you'd like to learn more about the new regulations and training requirements, my company has posted a detailed explanation of the FEHC Regulations for AB 1825 at our site. Or <shameless promotion warning>, feel free to jump to the online training marketing material to learn more about our AB1825 compliance solutions.

FEHC to adopt AB 1825 regs

2006-11-10T13:48:00.000-08:00

The Fair Employment and Housing Commission (FEHC) plans to make official the latest version of its proposed regulations regarding AB 1825 harassment training.

According to the FEHC AB1825 regulation webpage, "the Commission proposes to adopt these regulations as its final regulations at its November 14, 2006 Commission meeting."

According to the agenda, Governor Schwarzenegger might show up too.

AB 1825 law modified

2006-10-13T14:51:00.000-07:00

On September 29, 2006, the Governor signed AB 2095, which modifies the sexual harassment training statute (Government Code 12950.1) that was originally created by AB 1825.

Significantly, the new law changes the training mandate to specify that only supervisors physically in California need to be trained. It does this by adding the words "in California" after the term "supervisory employee" regarding the workers that employers need to have trained.

Previously, the proposed regulations (August 29 version) adopted this "only in California" rule. Now, regardless of the final regulations, it's the law.

Another revision of FEHC regulations

2006-10-02T16:23:00.000-07:00

Today, the Fair Employment and Housing Commission issued the most recent version of its regulations for AB 1825 (download FEHC regulations 10-02-06).

The most significant revision is that the "training year" is back. So, if supervisors were trained in 2005, they can be retrained anytime in 2007. That should make it easier for employers to comply with the AB1825 regulations.

According to the FEHC site, "The Commission seeks public comment on these regulations until October 20, 2006." Thus, we're likely to have a (final) revision of the regs by the end of the month, which will likely be adopted at the Commission's next meeting on November 14, 2006.

FEHC revises revisions

2006-09-08T17:00:00.000-07:00

Apparently, the FEHC didn't intend to "sneak" (or to have "snuck"?) the changes they didn't underline or ~~strikeout~~ in the revised August 29, 2006, version of the proposed AB 1825 regulations. My last post mentioned how some of the changes from the June 20 version didn't appear in the first version of the August 29 FEHC revisions.

Today, they sent out a corrected version of the August 29, 2006 proposed regulation, which highlights all of the amendments.

According to the FEHC announcement, "On September 7, 2006, the Commission discovered several errors in the underlining and strikeout formatting of the August 29, 2006, modified regulations that it had issued to the public after its August 29, 2006, Commission meeting. This corrected version fixes those errors."

Only in California

2006-09-07T10:01:00.000-07:00

Snuck into the August 29 revisions of the Fair Employment & Housing Commission (FEHC) regulations was a change that limits the AB 1825 training mandate to only supervisors in California. Formerly, supervisors who "directly supervised" employees located in California had to be trained, no matter where those supervisors were located.

I say "snuck" because the August 29 revisions didn't show the text change from the earlier June 20 version of the regulations. The FEHC showed other changes, ~~striking out deletions~~ and underlining additions to the text, but didn't show the change in the definition of "supervisory employee" that it made.

Under the June 20 proposed rule, a sales manager located in Detroit supervising salespeople in Oakland had to take AB 1825 training. Now, under the August 29 proposed rule, only those supervisors physically in California need to be trained.

Note: You still have to count all employees located anywhere to determine if you have enough (50) employees to be covered by AB 1825. The revision only limits the supervisors who need to be trained to those in California.

Modified FEHC Regulations

2006-08-30T16:02:00.000-07:00

The Fair Employment and Housing Commission released the latest version of the regulations for AB 1825 sexual harassment training.

Here are the recently proposed AB 1825 regulations (8-29-06).

Significantly, "training year" tracking is restored, so if you trained everyone in 2005 you can train them all again during 2007. However, the "training year" has been restricted to allow only a six-month grace period (i.e., no more than 30 months) from any supervisor's last training.

So if you use "training year" tracking, whenever a particular supervisor was trained in 2005, that individual must be retrained again in 2007, but no more than 30 months after the 2005 training. If they trained in February 2005, they must be retrained by August 2007 (i.e., no more than 30 month later). If they trained in August 2005, they must be retrained by December 31, 2007 (i.e., they must be retrained before the end of the 2007 training year).

Any questions?

FEHC Regulation Action!

2006-06-30T14:28:00.000-07:00

Sometimes it's frightening the information you get from customer service.

For example, two days ago I spoke with the guy picking up the Fair Employment and Housing Commission (FEHC) telephone line at (415) 557-2325 and asked him about the Commission's progress on the AB 1825 sexual harassment training regulations.

"Wait until December," was the reply.

Now, barely two days later, the FEHC revised regulations appear.

So, what's been revised? Here's my first analysis of the major changes:

for counting whether an employer has 50 workers, "regularly employed" independent contractors means employing them for each day in a week for at least 20 consecutive weeks
"two hours" does not mean "two hours of e-learning content for an average reader"; instead, it is defined as "a program that takes the supervisor no less than two hours to complete"
out-of-state supervisors who "directly supervise" California workers must be trained
e-learning must provide answers to student questions within two business days
the "training year" is out; only "individual tracking" is permitted (i.e., has it been two years since this particular supervisor was trained?)
new supervisors trained at another employer within prior two years doesn't have to be retrained, but only has to read and acknowledge the new employer's anti-harassment policy
training isn't required on the specific employer's complaint procedures, but only "the essential elements of an anti-harassment policy and how to utilize it...."
every supervisor must be given a copy of the employer's anti-harassment policy and acknowledge receipt

I note they adopted a "two hours means two hours" rule, rather than the "two hours for an average reader" rule (see my previous post Is it something we did?). This may cause a problem for other online trainers who don't have a way to guarantee two hours for each trainee. At my employer, we do.

FEHC in-action

2006-06-28T15:35:00.000-07:00

There hasn't been much need to blog about AB 1825 in the last few months.

Really, the only new development we expected in 2006 were the official regulations from the Fair Employment and Housing Commission (FEHC). The FEHC issued proposed regulations in December 2005, had a few public meetings, and was to issue the "final" regulations in May.

The May meeting, however, was postponed to June, and ultimately held telephonically on June 20. According to the FEHC website, during the June 20 meeting "the Commission will consider and adopt revised harassment training regulations." Also, "Once the Commission has adopted revised regulations, the Commission will post the revised regulations on this website...."

According to a conversation with the FEHC office, the Commission did have a telephonic meeting regarding the regulations on June 20. But have they posted anything? No.

Do they have any information about the "final" regulations? No, but they'll post it when they do.

When do they estimate that the "final" regulations may be ready for release? The end of the year.

Will they be posting anything before then? No.

So, we can expect to wait perhaps until December 2006 to see the final AB 1825 regulations from the FEHC? Yes.

See, nothing to blog.

Did you miss the deadline?

2006-01-03T12:16:00.000-08:00

We've had several questions from employers who want to know the consequences of missing the December 31, 2005, deadline for completing their initial AB 1825 training. Some companies emphasize their "good faith" efforts, and often mention supervisors who are "out on workers' comp" or "absent on pregnancy leave," etc.

Unfortunately, we're not aware of any "good faith effort" excuse for non-compliance under AB 1825. Companies have had at least six months (since July 1, 2005) to train supervisors by the 2005 deadline, and we don't believe attempts during the final days and weeks will provide a defense. However, there's no automatic penalty for violating AB 1825 either.

Basically, it's as if you're driving a car without a license and without registration. If you're not pulled over, and if you don't get in an accident, there's likely to be no problem. However, if you are inspected or investigated by law enforcement, or if anyone complains or sues, you're out-of-compliance and in violation of the law.

You don't want to hit a pedestrian without having a license in an unregistered car. You also don't want to be caught in non-compliance with AB 1825. A failure to comply can lead to increased liability, bad publicity, and possibly punitive damages.

So, there's no direct penalty for missing the deadline, but only unacceptable (and potentially disastrous) consequences.

AB 1825 regulations issued

2005-12-16T12:39:00.000-08:00

The proposed regulations for AB 1825 have been released by the Fair Employment and Housing Commission.

They've issued the:

text of the proposed regulations (5 pages)
a "Notice of Proposed Rulemaking" (6 pages; also note the calculation error on page 4 — it says there are 117,491 supervisors requiring AB 1825 training in California, but they mean 1,174,915)
a "Statement of Reasons" (17 pages)
and background exhibits and notes (64 pages)

And, there's nine business days left before the December 31, 2005 deadline for AB 1825 compliance.

Even newer USERRA poster

2005-12-16T12:31:00.000-08:00

I posted in March 2005 about the new USERRA (military leave) poster issued by the Labor Department that all employers in the US are required to put up.

Today, the Labor Department issued an "updated" USERRA Poster.

Plus, they put up a 24 page explanation of the notification rule, and a 268 page explanation of the USERRA regulations.

Is it something we did?

2005-12-08T16:48:00.000-08:00

AB 1825 simply mandates "two hours" of training, so my company made sure our software requires attendees to spend at least two hours getting through it (no matter how fast they "clicked"). We do this by tracking their time in the course and, if necessary, submitting additional pages to ensure readers have sufficient material to fill the two hour requirement.

We aren't aware of other AB 1825 training providers that do this. We know some have clocks to show attendees their time, or some have video or audio tapes that run the time, but we hadn't heard of anyone actually inserting additional pages (we call them "interrupt pages") to provide fast readers with a full two hours of training.

Curiously, a preview of the official AB 1825 regulations to be issued by the state Fair Employment and Housing Commission (FEHC) says we didn't have to go to the trouble. According to the article:

"the draft regulations clarify that 'e-learning programs are not required to have a built-in timer that causes rapid learners to view additional content until the two hour standard is met.' "

We thought this extremely curious, since we don't know of any company (except us) that has "a built-in timer that causes rapid learners to view additional content" as mentioned in the (yet to be released) regulations. It's like they were saying our compliance feature — ensuring two hours of training no matter the attendee's reading speed — was unnecessary.

According to the article, two hours of online training is going to mean "the amount of time that the same content may be covered in an e-learning program for an average learner."

So, the proposal is to have a mythic "average learner" and use him/her/it to measure two hours. (That's like using smoots to measure distance.) Of course, not everyone is "average," which means that fast readers might only have to spend an hour on AB 1825 training, while slow readers might have to spend three or four hours to go through the "same content." That seems ridiculous.

It seems to me that giving fast readers more material to ensure two hours of training time is more in keeping with the law's requirement that employers provide two hours of training, than is letting attendees out early if they read (or click) quickly through a program.

Similarly, it seems that requiring everyone to go through the amount of material that an average person could complete in two hours means about 50% of the attendees (the "slower half") will be forced to spend more than the two hours mandated by the statute.

Why doesn't the FEHC simply say "two hours" means "two hours"? Why adopt some strange lawerly definition (i.e., "the amount of time...").

We figured out how to provide it. For any employer that wants to comply with the law's requirement to provide two hours of training, that should give us a competitive advantage. I'm curious why the FEHC's advisory committee is saying that's not right.

15 business days left...

2005-12-08T16:13:00.000-08:00

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

Commercial: It's time to sign up for my live AB 1825-compliant presentation. The only class with seats open is on December 15 (Thursday) at 1:30. Send all your supervisors in the Bay Area; the classroom is near the Pleasant Hill BART (and we'll validate parking if you drive). map

19 business days left...

2005-12-02T17:48:00.000-08:00

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

And now a message from our sponsor: If you're in Northern California and want to attend my live classroom presentation (and satisfy your AB 1825 training requirement with a fun and interactive program) sign up here.

The classes will be held twice (morning and afternoon) on December 13 (Tuesday) and 15 (Thursday). The classroom is near the Pleasant Hill Bart Station (or we'll validate parking if you drive). map

What a rush

2005-11-29T17:22:00.000-08:00

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....

25 business days left...

2005-11-23T11:37:00.000-08:00

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

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

29 business days left...

2005-11-17T17:15:00.000-08:00

...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.

32 business days left...

2005-11-14T10:17:00.000-08:00

...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.

Who's qualified to do AB 1825 training?

2005-11-11T11:18:00.000-08:00

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.”

33 business days left...

2005-11-11T11:16:00.000-08:00

... until the December 31, 2005 deadline.

Enjoy your Veterans' Day holiday.

Training "already trained" supervisors

2005-11-10T19:06:00.000-08:00

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.

Early hints about proposed regs

2005-11-08T19:56:00.000-08:00

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).

Training "independent contractors"

2005-11-08T19:49:00.000-08:00

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.

"Sexual harassment training becomes a lucrative business..."

2005-11-08T19:39:00.000-08:00

...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.

35 business days left

2005-11-08T19:37:00.000-08:00

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?

Been awhile...

2005-08-08T18:51:00.000-07:00

It's been a few weeks since the last post; yet I doubt anyone has been waiting on pins-and-needles for my next message.

Anyhoo, I have not been slacking off (other than failing to post). For example, I've:

finished LawRoom's out-of-the-box AB 1825 training course for use by consultants/HR staff (we call it our "Portable Classroom")
conducted an AB 1825 training for supervisors of a large fast-food chain using the "Portable Classroom" (the attendees loved the interactive radio-controlled responder units they used to answer the questions -- these units are like the "clickers" you see in the Ask-The-Audience lifeline section of the Who Wants to Be a Millionaire TV-show)
talked with the FEHC staff about AB 1825 regulations (the advisory committee is developing a draft set that will be presented to the Commission in mid-September, which will be followed by officially-proposed regulations issued for public comment; I'm guessing we'll get the new regulations around the new year)

Plus, I've been keeping up with case law. For example, California's Supreme Court decided a case involving the California prison system and a warden's multiple affairs with subordinates. Not surprisingly, the Court ruled that an atmosphere in which employees "must sleep with the boss" to get ahead is a hostile environment. link

Some commentators said that this was a change of law, but I see it as a natural and anticipated development. What's new is that previous cases held that favoritism to the boss' love-object was not harassing to other workers, since all other employees -- both men and women -- were equally disadvantaged by the boss' favoritism. However, the recent case is significantly different in that it involved multiple affairs and an environment in which women were treated as "playthings."

7/1/05: Do you know who your supervisors are?

2005-07-12T18:56:00.000-07:00

In the AB 1825 world, July 1, 2005, was a significant date.

Under the new law, all persons employed in "supervisory" positions on July 1, 2005, must complete their initial two hours of training by the end of this year. Those hired/promoted after July 1, 2005 must be trained within six months of hire/promotion.

For example, if Alice was a supervisor on July 1, 2005, she must receive her first AB 1825 training by December 31, 2005. If Bob is promoted to his first supervisory job on November 1, 2005 (pre-congratulations Bob!), he must receive his first AB 1825 training by May 1, 2006 (i.e., within six months of his promotion).

After January 1, 2006, supervisors must complete another training at least every two years.

Bonus Quiz:
There's a "grandfather" clause in AB 1825 that credits training completed since January 1, 2003 (see Government Code section 12950.1(a), second sentence).

Suppose Carl received training on November 1, 2003, that complied with the requirements of AB 1825. By what date must Carl complete his next training?

Arnold's been trained

2005-07-05T17:55:00.000-07:00

Not only did Governor Schwarzenegger require all managers to undergo sexual harassment training by signing AB 1825, but he's also taken some lessons himself.

According to http://www.contactmusic.com/ ("All the Best in Music, Movie and Celebrity News"), the Governor is quoted as saying, "When we all came into this office we all took training for sexual harassment." link

Author says train out-of-state supervisors

2005-06-23T16:51:00.000-07:00

In a recent online presentation, former Assemblyperson Sarah Reyes, the author of AB 1825, directly addressed the question of whether companies had to train managers who are located outside of California. She confirmed that everyone who supervises California workers – no matter where they're located – need AB 1825 training.

Ms. Reyes was specifically asked whether AB 1825 has "any extraterritorial reach"? Her immediate answer: "Yes."

Ms. Reyes warned covered employers: "Managers, even though they may be in Texas, or they may be in Ohio, they're subject because they may be managing those people in California."

She emphasized that companies cannot avoid AB 1825 training simply by not having any "supervisors" in California. She said, "You can have 50 employees here and have all your managers in Texas, well, all those managers in Texas are subject to this law, so you would have to train those managers in Texas."

Avoid nude interviews

2005-06-22T16:20:00.000-07:00

If you train supervisors on preventing sexual harassment, it's apparently necessary to emphasize that they shouldn't conduct job interviews in the nude. Unless, as the Evening Times points out, those supervisors are ready to lose their "job, house, and pals." link

The nude interview took place in Glasgow, Scotland. I always thought the question concerned what Scots wore under their kilts.

Thanks to Confined Space, the premier (or, at least my favorite) proggy-workplace safety blog, for catching this case.

Newer new I-9 form

2005-06-20T09:45:00.000-07:00

Hey, the feds re-jiggered the I-9 form again. They simply replaced the one I wrote about last week with a new one. link

It's got the same OMB number (1615-0047) as the last "new" form; they revised it without changing that. (If you want to see the last "new" form, the one they'd released last week, click here.)

Basically, they went back to the old INS form but "rebranded" (as they say) it with the new initials (e.g., USCIS and ICE), and took all the initials off the document lists (thereby correcting a typo in the last "new" form). And, they deleted the note saying the old forms could be used only through 12/31/05.

Ahh, well, always something new.

AB 1825 Webinar (free!)

2005-06-17T14:21:00.000-07:00

I'm pleased to announce that LawRoom's AB 1825 Webinar is now online.

It's our latest-and-greatest analysis. Who must comply. What must you do. When must you do it. Etc.

And it's free. Please check it out.

New I-9 form

2005-06-16T11:11:00.000-07:00

It's time to replace old I-9 forms....

The old I-9 "Employment Eligibility Verification" form issued by the DOJ's now-defunct INS has been superseded by the Department of Homeland Security's US Citizenship and Immigration Service's new I-9 form.

They didn't change the acceptable-document list (we've been waiting since 1997 for that), mostly they just changed the agency names. Plus, they added a note that the old I-9 forms may continue to be used until 12/31/05.

A Littler more strange advice

2005-06-15T15:06:00.000-07:00

The US Supreme Court recently ruled that federal agents can prosecute/persecute dying cancer patients for using marijuana despite state laws permitting medical pot. link

Although the decision had nothing to do with employment law, it did give employment-law firm Littler Mendelson an opportunity to crank up its PR machine to try to find some employment-law-related wisdom to spin out.

What they suggest, however, is strange. Curiously, Littler appears to suggest that employers have workers slowly taper off dope smoking at work rather than stop it all at once.

In Littler's June 2005 ASAP, they write: "employers can refuse to consider accommodations that would acknowledge or support illegal activity." Despite this accurate and succinct statement, they continue with this advice: "a 'reasonable' accommodation is likely to include steps like allowing an employee the opportunity to transition to another medication (e.g., Marinol) or other treatment." (emphasis added)

In other words, ask your worker Bud to lighten up lighting up bud. I imagine their suggested conversation goes something like:

"So, Bud, we understand you have glaucoma, but do you think you can cut back on your dope a bit? You know, one joint less a day should do it."

Supervisors outside California

2005-06-01T18:10:00.000-07:00

Jennifer writes:

Our company (well over 50 employees) has a plant located in California. My question is: is it safe to assume that the specifics of this law apply only to training supervisors located inside California? In other words, are we required to train our supervisors in Pennsylvania, Oklahoma or in the international offices under the same requirements as well?I reply:

Generally state laws (and enforcement agencies) only control what go on in their own (and not other) states. So, the training requirement of AB 1825 is likely to be applied only to supervisors who supervise employees working in California.

Note that I didn't say "supervisors in California," however, because my best guess is that an employer cannot escape the training mandate by having supervisors located out-of-state (or out-of-country). So, if someone directs California workers — no matter where they're located — they should be trained.

In other words, if an engineer in Bangalore is supervising coders in San Francisco, I believe that this supervisor must receive AB 1825 training because they supervise employees in California.

But, if a New York supervisor only directs non-California workers, AB 1825 wouldn't apply.

That's my interpretation. Of course, when (and if) the state puts out regulations, we may have a more definite answer.

SF 49ers training sex tape

2005-06-01T14:13:00.000-07:00

Don’t let this happen to you.

Training professionals routinely warn employers to avoid creating trouble by providing problematic training programs.

The San Francisco 49ers recently presented a course that they're likely to regret. Although intended (and likely perceived) as a lighthearted coverage of media dos-and-don’ts for professional football players, the video, starring 49ers public relations director Kirk Reynolds, includes racial stereotyping, suggestive language, explicit swearing, lesbian sex play, and a co-ed nude shower scene.

The video, separated into segments for (sl)easy viewing, is at SFGate.com; start with their warning message/disclaimer.

If you want to experience just the "low lights" of the production, I suggest (download the links and open with QuickTime):

Racial stereotype and suggestive language (segment 2)
Nudity and sex play (segment 3 and segment 8)
Expletives (segment 6)

Plus, there's clueless irony:

"Everything you do and say is covered by the media…. If you do something controversial, if you say something controversial, it will have an impact on this team."
— SF 49ers public relations director Kirk Reynolds (segment 7)

AB 1825's author speaks

2005-05-29T11:43:00.000-07:00

Bills (like art works or children) once enacted (completed or emancipated) are free to become whatever they turn out to be regardless of the intentions of the author (artist or parent).

Even so, we may nonetheless show a decent respect to the opinions of the creator.

In April 2005, the author of AB 1825, former assemblyperson Sarah Reyes, spoke at a Littler event in Phoenix (why speak in Arizona about a California-state law?) about her creation. Here's the transcript of her Q&A.

Significantly, Reyes says AB 1825 training may include scenarios covering types of harassment and discrimination other than solely sexual harassment and should be presented by trainers who have both "knowledge" and "expertise."

Out-of-state workers count

2005-05-26T11:07:00.000-07:00

AB 1825 mandates harassment training for companies in California with more than 50 workers. Although the law says to count all employees and independent contractors, one of the prime questions for employers that operate both in and out of California is:

"Do you count employees outside of California?"

The answer is "Yes."

First, the text of AB 1825 does not exclude out-of-state workers from an employer's count.
Second, a publication of the Department of Fair Employment and Housing (DFEH), the agency that enforces FEHA (and thus AB 1825), says "For purposes of counting the number of 'persons employed,' both full-time and part-time employees who are 'regularly' employed within or outside of the State of California should be counted." [DFEH Case Analysis Manual, Vol. II §17(C)(1)(a)]
Third, a consultant with the DFEH confirmed that the agency counts a company's employees in all the United States to determine the agency's jurisdiction (i.e., whether there are enough employees). I've also read on the 'net that the California Fair Employment and Housing Commission, the agency that issues FEHA regulations, is giving the same answer.
Fourth, an official regulation for another law (the California Family Rights Act, which similarly applies only to companies with more than 50 employees), says employers should count all "persons within any State of the United States, the District of Columbia or any Territory or possession of the United States...." [2 CCR §7297.0(d)]

So, unless an official regulation or court decision limits counting to only California workers, the only reasonable approach is to include out-of-state workers in your AB 1825 count.

Who's an "employer"?

2005-05-18T14:59:00.000-07:00

AB 1825, the law mandating workplace sexual harassment training in California, requires "employers" to comply. So, who's an "employer"?

We're still awaiting the official regulations, but I've parsed the statutory text to clarify the definition. Under the new Government Code §12950.1(c),

"employer" means:
     any person
          regularly employing 50 or more persons or
          regularly receiving the services of 50 or more persons providing                            services pursuant to a contract, or any person
          acting as an agent of an employer, directly or indirectly,
     the state, or
     any political or civil subdivision of the state, and
     cities.

In other words, any organization with 50 people working — including employees, independent contractors, consultants, and temps — and most public employers regardless of the number of employees.

Competitive scramble

2005-05-17T16:26:00.000-07:00

I recently did a little market research, checking out the offerings in the AB 1825 sexual harassment training world. For example, I've listened to sales pitches by Corpedia, the California Chamber of Commerce (EmTrain), Workplace Answers, AHI, Brightline, Training Online, and so on.

The first thing that struck me was the fact that they were all scrambling. One salesperson referred to being "blindsided" by AB 1825. All of a sudden, it seemed, there was a two-hour interactive training mandate for California employers when once there wasn't.

To meet this unexpected (?!) requirement, most companies slapped together some sexual harassment training something-or-other that they'd like to sell to you. For example, "we've got a one-hour course here — and we'll have the second hour next month." Or, "we don't have an interactive question/answer system yet — but we're putting one together."

Not to boast, particularly, but my company has specialized in helping employers comply with California law since 1994, and focused strictly on online interactive questions-and-answers since 1998. We've handled over 6,100 email employment law questions-and-answers from individuals, and our automated knowledge-management system (the Memo library) handled over 45,000 natural-language questions-and-answers in just the past year.

All we do is California employment law compliance, and we've got years of experience providing interactive online learning. That's different than the competition.

Equal opportunity harassment

2005-05-03T21:18:00.000-07:00

One of the curious differences between California and federal anti-discrimination law is that the Fair Employment and Housing Act (FEHA) expressly prohibits harassment, while Title VII does not.

Instead, Title VII only prohibits "discrimination" but does not mention harassment. However, when harassment is directed toward only one sex (or race, or religion, etc.), this "discriminatory" harassment is forbidden by federal law.

Accordingly, federal law permits what I call the "bisexual defense." In other words, if a supervisor sexually harasses both men and women equally, this misconduct would not violate Title VII (since it's not "discriminatory") but it would violate FEHA (which specifically forbids sexual harassment). For a story on this point, see this case.

Although Title VII does not prohibit an "equal opportunity" (non-discriminatory) harasser, recent cases are showing that an abusive boss might nevertheless violate federal law if the impact of the abuse falls more heavily on one sex rather than another.

For example, this case involves a workplace in which dirty jokes were shared with both men and women, but which typically demeaned the women and thus had a discriminatory impact. Likewise, in this case a female supervisor at the Navy submarine base in Groton CT, though vulgar and abusive to both men and women, may have directed some of her abuse at her subordinates based on their gender (male), and hence may have violated Title VII.

If you want to complain...

2005-04-21T18:27:00.000-07:00

Here's one for employees:

In California, the agency that handles complaints of workplace harassment and discrimination is the Department of Fair Employment and Housing (DFEH).

If you want to complain, the DFEH is the place to go. You can even start a DFEH complaint online. You've got to be prepared to answer a bunch of questions.

You've got only one year after a bad event to complain to the DFEH. So, contact them as soon as possible.

Trainer or lawyer

2005-04-14T22:14:00.000-07:00

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.

WMSDS 2

2005-04-11T10:12:00.000-07:00

Most managers who get in trouble dating a subordinate meet up with their problematic paramour in their mutual workplace. Still, not all.

For example, Richard Soulam was a manager at the US Treasury Department in San Francisco when he got in trouble for sexually harassing a subordinate, Susan Peacher. However, Soulam and Peacher had another professional relationship prior to their official him-supervisor/her-subordinate workaday world in the US government.

Previously, she was his dominatrix and he was her boot-licking client. link

Despite her leaving the leather whips behind at home, Soulam repeatedly sought "sessions" from his former master. After complaining about her supervisor's unwelcome attempts at submission, Peacher claims she was retaliated against. She sued and recently settled with her employer for $60,000, a transfer, and other benefits.

So, this isn't only a "why managers shouldn't date subordinates" (WMSDS) case, it's also a fine example of a rarely seen "why managers shouldn't ask subordinates for sessions" (WMSASFS) case.

Occupational gender benders

2005-04-08T21:52:00.000-07:00

Interesting footnote in the history of gender (dis)integration in the American workplace from the Bureau of Labor Statistics (BLS). link

The BLS studied participation by gender in various occupations traditionally dominated by one gender and the change in that participation between 1983 and 2002. For example, during this period:

the number of male dressmakers increased by 277%
the number of female auto repair workers increased by 369%

I'm reminded of an interview I heard with Tina Weymouth, the bassist of the Talking Heads, telling a story about her son being asked whether he too might play the bass. The story is the young boy immediately rejects the idea, saying with distain, "bass is a girl's instrument."

New "meal break" regulations

2005-04-07T11:23:00.000-07:00

Yesterday, the California Labor Commissioner amended its recently proposed regulations about the state meal break rules. link

The amendments nicely clarify the basic law (employers must permit a 30-minute meal break for any shift over five hours, and two meal breaks for shifts over ten hours) and remove some potentially confusing text about getting employees to sign an acknowledgment, letting employees pick their meal break starting time, etc.

Unfortunately, I see a problem in proposed §13700(a)(4), which gives a conflicting definition of "work period." The first sentence implies a "work period" does not include meal breaks (by saying it only includes time employees are subject to an employer's control). The second sentence implies a "work period" does include meal breaks (by saying the work period only ends at the end of the workday). I think the second sentence is an incorrect statement and needs to be fixed.

The Labor Commissioner is taking comments on the amendments to the proposed regulation, so I faxed them a letter pointing out the problem and suggesting new text to substitute.

Pro-training quotes

2005-04-05T19:19:00.000-07:00

I found a couple of good quotes encouraging training.

The first comes from William Anthony, professor of management at Florida State University (and an expert witness on workplace harassment — which is what I want to be when I grow up). He's commenting on a story I noted in an earlier post, about a law firm that promoted a partner a short time after an investigation revealed that he'd sexually harassed female subordinates. link

Regarding the law firm's cluelessness-in-action, Anthony writes, "I'm sure they have a good sexual harassment policy, but how was it promulgated?" He opines, "The key is training and how policies are communicated." His primary question: "How were people trained?" link

The second quote is a warning from the Jackson Lewis law firm: train them now or train them later. Commenting on Morgan Stanley’s $54 million settlement with the EEOC, out of which $2 million was set aside for training link, the firm writes:

"Workplace training continues to play an increasingly prominent role in the resolution of employment litigation and in the decisions of the courts on the liability of employers for harassment and other forms of discrimination and unlawful workplace conduct. The verdict seems to be clear: either proactively conduct workforce training to educate managers, supervisors and employees about the principles and practice of equal employment opportunity and prevent disputes, OR, reactively defend allegations of discriminatory treatment and absorb the resulting costs including the court mandated training of managers and employees."

The Potty Question

2005-04-04T22:05:00.000-07:00

I mentioned in an earlier post a case about a transgendered officer who'd suffered discrimination based on sexual stereotyping from senior police department officials. In that case, Philecia (nee Phillip) won $875,000 for the intentional discrimination and harassment.

Of course, not all employers are overtly hostile to gender-benders. Some want to be accommodating. But they still wonder about the "potty" question.

You know, where will Philecia/Phillip go when she/he has to?

Here's an interesting recent article on the potty issue. link

One solution is, of course, gender-neutral bathrooms. link

This is a hot topic at my alma mater. My former English teacher (later Yale's Dean) said, "I have spent far more of my life than I ever would have dreamed answering questions about shared sex bathrooms at Yale. My sense is that this is not the matter of easy and casual comfort for everybody that people like to pretend it is." link

The kids are comfortable with it but the authorities are less so. A bathroom exclusion based on birth-gender was recently upheld in New York. link

My experience? It's not a problem. Almost without exception people (including transgendered people) go into a bathroom to go to the bathroom. People should be able to choose the bathroom they go into. They go, you go. It makes some people nervous when they first realize it. But nothing ever happens.

Must all US employers train?

2005-04-03T14:40:00.000-07:00

Other than AB 1825 training in California, are employers required to provide anti-harassment training in other states?

One answer is "Yes, if..." and another answer is "No, but...."

The basic federal rule is that employers must take "all reasonable steps" to prevent harassment. In 1998, the US Supreme Court decided two cases (Ellereth and Faragher) that established rules for harassment liability and that offer legal protections to employers if they train employees (i.e., the "affirmative defense" under Title VII). link The California Supreme Court followed with a similar benefit to employers-that-train, allowing them to take advantage of the "avoidable consequences" doctrine. link

Similarly, in the EEOC's guide on an employer's vicarious liability for supervisors' harassment, the EEOC says employers should "affirmatively raise" the topic with (i.e., train) supervisors and employees. link

Training is currently required by statute in California, Connecticut, and Maine, and by case law in New Jersey. Both CA and CT have a "2 hour" requirement.

This suggests a growing consensus that it is probably "reasonable" to provide 2 hours of training (at least) on sexual harassment (at least). After all, CA and CT employers are required to do so, and they're still in business, so that can't be unreasonable, right?

Thus, is anti-harassment training mandatory for all US employers?

No, but it is required in some states and provides legal benefits across the US.
Yes, if you're in some states or want to take advantage of the "affirmative defense" under federal law, but it's not explicitly required by federal statute or regulation.

Observations

2005-04-02T22:23:00.000-08:00

Why Managers Shouldn’t Date Subordinates (WMSDS) #1: Harry Stonecipher, 68, called out of retirement to be CEO of Boeing and restore a little ethical backbone, gets hoisted on his own petard (affair and erotic emails with a 48-year-old Boeing subordinate) and loses (1) his job and (2) his wife. link

In the Philippines, “blue jokes” are “green jokes.” So, playing blue or off-color here qualifies as green there. link

A big national law firm decides to promote a partner to a top executive position despite having recently found him harassing younger female colleagues. link The guy apparently liked to ask women to “feel his pipes.” link Initially, the firm lamented that the publicity “recklessly and unfairly impugns the reputation of one of the firm's finest partners who cannot defend himself.” link Then it notices no one's buying the "pity-the-poor-harasser" story, so it retracts the guy's promotion. link

A court awards $875,000 against a police department for sexual stereotyping a transgendered cop. Apparently the senior officers questioned the “command presence” of the 18-year veteran officer, who “was living off-duty as a woman, had a French manicure, had arched eyebrows and came to work with makeup or lipstick on his face on some occasions.” link

Wanna Subscribe?

2005-03-17T21:55:00.000-08:00

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.

Official Poster - Less Color!

2005-03-10T11:41:00.000-08:00

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.

Many Lawyers, Littler Help

2005-03-07T15:59:00.000-08:00

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.

Official USERRA Poster link

2005-03-04T13:48:00.000-08:00

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

The informational USERRA poster has been
temporarily removed. Please check back on
March 10, 2005, for the final 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.

Cross-Species Training?

2005-03-03T22:28:00.000-08:00

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."

USERRA Poster (update)

2005-03-02T11:44:00.000-08:00

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

New USERRA Poster

2005-03-01T20:28:00.000-08:00

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.

Waiting for Regulations

2005-02-27T18:33:00.000-08:00

AB 1825 leaves a number of questions without clear answers, e.g.:

who needs to be trained (how do you determine who's a supervisor)?
which employers need to train (how do you determine who has enough workers)?
what kind of training is required?
who's qualified to provide training?

I've already listed some interpretations of legal experts; I'll offer mine in later posts. Of course, it's all guesses until we get the official regulations.

Where are the "official regulations"? The state agency responsible for explaining how to comply with AB 1825 is the Fair Employment & Housing Commission (FEHC). Until recently, the FEHC didn't have a quorum (there were only 3 of the 7 Commissioners appointed), so they couldn't act officially. However, Arnold recently appointed two FEHC Commissioners, thus creating a quorum.

So, will the FEHC issue regulations, or are regulations anathema to a Republican administration? I spoke with an FEHC official, and he confirmed that the employer community has been calling for clarification, and the administration will likely want to help them out.

My guess is that the FEHC will propose regulations in the next 60 days, which will then be open to public comment, etc. I'd expect final rules the end of July.

Why did Arnold do it?

2005-02-26T20:51:00.000-08:00

Do you have any idea how much it will cost California employers to provide sexual harassment training to hundreds of thousands of "supervisors" in California? (Jackson Lewis says there are 1.7 million supervisors in California; overall, there's around 14 to 17 million employees in California.)

Why'd the state administration do it? Why cost California employers millions of dollars each year? There are the usual arguments: Training is effective to eliminate discriminatory misconduct, it's good social policy, it's about time (after all, Title VII has prohibited sex discrimination for 40 years, and female employees in California have had the right to wear pants for 10 years), it's a useful social experiment to maintain California's cutting-edge reputation, and so on.

My guess? I'd bet Arnold was too embarrassed to veto the bill. (Remember this and this and this sort of thing?) Otherwise, Arnold's practically in bed with the Chamber of Commerce (other than official events on his inaugural day, he partied only with family and the Chamber); Arnold signed-and-vetoed pro-Chamber (pro-employer) almost all the way. The Chamber opposed AB 1825 — until Arnold signed the bill. Now they sell AB 1825 training for about $200 per supervisor.

What do the lawyers say?

2005-02-26T14:14:00.000-08:00

The professional legal experts obviously have a stake in interpreting the new law. After all, AB 1825 creates compliance obligations and a risk of liability for non-compliance. Lawyers are in the compliance/risk/liability business.

Here's what some of the top employment law merchants say about AB 1825:

AB 1825 : The Law

2005-02-25T21:26:00.000-08:00

Let's start with the law and legislative background:

In 2004, the California Legislature enacted AB 1825. You can see AB 1825 in either html or pdf at the Legislature's site. This bill amended the California Fair Employment and Housing Act (FEHA) by adding a new provision: Government Code section 12950.1.

Broadly, this new law requires "employers with 50 or more employees to provide 2 hours of training and education to all supervisory employees, as specified, within one year of January 1, 2005 ... [and] requires each employer to provide sexual harassment training and education to each supervisory employee once every 2 years, after January 1, 2006." [per the Legislative Counsel's Digest]

Also useful is the final Assembly Analysis.