California employers of 50 or more employees, including those outside California, are required to provide supervisors within the state of California with two hours of sexual harassment training every two years. The minimum employee count of 50 includes temporary service employees and "persons providing services pursuant to a contract" in its workforce. The latter are called "contractors" and must be counted if they provide services for each working day in 20 consecutive weeks in the current calendar year or preceding calendar year.

The law also requires training for all supervisors within six months of becoming supervisors, and providing them with at least two hours of anti-harassment training every two years thereafter. An expanding business must train supervisors within six months of reaching 50 employees. An employer may recognize a new supervisor's training received within the previous two years from another employer, and schedule subsequent training based on that prior training date. But if the prior training was provided by another employer, the employee must be given a copy, and required to read and to acknowledge receipt of the new employer's anti-harassment policy within six months of assuming the supervisor's new supervisory position. The new employer is responsible to assure the sufficiency of the previous employer's training.

Meeting these requirements neither provides a defense to a sexual harassment claim nor does failure to do so establish liability for harassment under the the Fair Employment Housing Commission (FEHC). However, failure to do so may be looked upon by a court as grounds for punitive damages in a sexual harassment lawsuit. In any event, FEHC may order a noncompliant employer to provide the training.

Who Must Be Trained
Training must be provided to all employees in California who have "supervisory authority," a broadly defined term in California. It generally includes anyone having the authority to exercise independent judgment to:

Hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees
Direct the work of other employees or adjust their grievances
Effectively recommend any of these actions
Therefore, employees who make recommendations to managers about such matters must receive training if their recommendations are likely to be acted upon.

To encourage inclusion in training, regulations provide that attending training does not create an inference that an employee is a supervisor, or that a contractor is an employee or a supervisor.

Content of Training
The training must include information and practical guidance regarding federal and state sexual harassment laws, including harassment prevention and correction, and remedies available to victims. It must be designed to 1) assist California employers in changing or modifying workplace behaviors that create or contribute to "sexual harassment" as that term is defined in California and federal law; and 2) develop, foster and encourage a set of values in supervisory employees who complete mandated training and education that will assist them in preventing and effectively responding to incidents of sexual harassment. It must include but is not limited to:

The definition of unlawful sexual harassment under California and federal law, which may be accompanied by a definition and training about other forms of harassment covered under state law and how harassment of an employee can violate their rights as a member of more than one protected class
State and federal statutory provisions and case law principles concerning the prohibition against in the prevention of unlawful sexual harassment in employment
The types of conduct that constitute sexual harassment
Remedies available for sexual harassment
Strategies to prevent sexual harassment in the workplace
Practical examples such as factual scenarios taken from case law, news and media accounts, hypotheticals based on workplace situations and other sources which illustrate sexual harassment, discrimination and retaliation using role-playing, case studies and group discussions
The limited confidentiality of the complaint process
Resources for victims of unlawful sexual harassment such as to whom they should report any alleged sexual harassment
The employer's obligation to conduct an effective workplace investigation of a harassment complaint
Training on what to do if the supervisor is personally accused of harassment
The essential elements of an anti-harassment policy and how to utilize it if a harassment complaint filed. Either the employer's policy or a sample policy must be provided to the supervisors. Regardless of whether the employer's policy is used as part of the training, the employer shall give each supervisor a copy of its anti-harassment policy and require each supervisor to read and to acknowledge receipt of that policy.

Interactivity Required
The training must be "interactive," meaning that video training would not be sufficient without discussion, role-playing, a question-and-answer session or other similar techniques led by a qualified trainer. Web-based training that includes interactive components provided by qualified organizations, such as CalBizCentral, will meet the law's requirements. Relative to interactivity, the regulations:

Specify that training must use hypotheticals or examples that illustrate the course conent and involve the supervisor through questions, problem-solving, and quizzes to insure that the information is understood.
Require that E-learning programs take the supervisor no less than two hours to complete. They must be written, developed and approved by an instructional designer (an individual with expertise in current instructional best practices, and who develops the training content based upon material provided by a subject matter expert), a qualified trainer or a subject matter expert.
Require an E-learning program to provide a link, or directions on how, to contact directly trainers or educators, either working for the employer or retained by the e-learning provider. These trainers or educators shall be available to answer questions and to provide guidance and assistance on harassment training issues within a reasonable period of time after the supervisor asks the question, but no less than two business days after the question is asked.
Require that webinars be taught by a qualified trainer. An employer utilizing a webinar must document and demonstrate that each supervisor who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated with the training’s interactive content, discussion questions, hypothetical scenarios, quizzes or tests, and activities. The webinar must provide the supervisors an opportunity to ask questions, to have them answered and otherwise to seek guidance and assistance.
Mandate that, for all training methods, the instruction must include questions that assess learning, skill-building activities that assess the supervisor's application and understanding of content learned, and numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain engaged in the training. Minimum training segments for classroom and webinar training must be one-half hour. E-learning programs may allow supervisors to pause at any point so long as the total program is at least two hours duration.

Qualified Trainers
A "Qualified Trainer" is a trainer, or educator, who is qualified to provide sexual harassment training for supervisors and has the training and experience about the following:

What unlawful harassment, discrimination and retaliation are as defined by California and federal law
What steps to take when harassing behavior occurs in the workplace
How to report harassment complaints
How to respond to a harassment complaint
The employer’s obligation to conduct a workplace investigation of a harassment complaint
What constitutes retaliation and how to prevent it
Essential components of an anti-harassment policy
The effect of harassment on harassed employees, coworkers, harassers and employers.

Tracking Compliance
Employers are permitted to use either of two methods or a combination of the two methods to track compliance:

Individual Tracking: An employer may track its training requirement for each supervisory employee, measured two years from the date of completion of the last training of the individual supervisor.
Training year Tracking: An employer may designate a "training year" in which it trains its supervisory employees and thereafter must again retrain all of its supervisors by the end of the next "training year," two years later, even those newly hired or promoted supervisors that received training in the prior year. Under the training year method, no supervisor may be retrained any later than 6 months from the anniversary date of his or her last training. Thus, with this method, assume that an employer trained all of its supervisors in 2005 and sets 2007 as the next training year and that a supervisor received his initial training on May 31, 2005. That supervisor must be re-trained by November 30, 2007. In addition, if an employer hired a new supervisor in February 2006 and provided the training on July 10, 2006. That new supervisor must still be trained during the 2007 training year in order to match others in the unit on a training year schedule.
Training documentation must include the name of the person trained, the date of training, the type of training and the name of the training provider. It must be retained for a minimum of two years.

Independent Contractors
California’s Fair Employment and Housing Act (FEHA) protects independent contractors from workplace harassment. Although California law does not specifically require that independent contractors receive sexual harassment information sheets, you should provide them to independent contractors. This practice ensures that independent contractors are aware of your anti-harassment and reporting policies, including their obligation not to engage in harassing conduct.

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