Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On August 30, 2019, California Governor Gavin Newsom signed Senate Bill 778, revising mandatory anti-harassment training deadlines, and resolving confusion about retraining requirements for certain employees who already received training in 2018 or 2019.
In September 2018, California enacted SB 1343, which extended the requirement that employers provide supervisory employees with two hours of anti-harassment training to businesses with five or more employees, including temporary or seasonal workers.1 The previous threshold had been 50 or more employees. The 2018 law also expanded the training requirement—which had applied only to supervisory employees—to include one hour of training every two years for all non-supervisory employees for covered employers. The initial deadline for providing new training to those employees not previously covered under prior state law was January 1, 2020. With the passage of SB 778, the deadline for the initial training for those employees has been pushed back to January 1, 2021.
Prior to SB 778, uncertainty remained regarding the timing of the two-year training cycle. The California Department of Fair Employment and Housing (DFEH) had taken the position that any employee (supervisory or otherwise) who completed anti-harassment training in 2018 would need to receive it again in 2019, to satisfy the now-scuttled January 1, 2020 deadline.2 SB 778 tackles any such potential confusion head-on and clarifies that employees who are or were trained in 2019 do not need to be retrained until two years have passed, sometime in 2021, and then every two years thereafter. To allow employers as much notice as possible, the bill includes an urgency clause stating that the legislation will become effective immediately upon passage.
The updates in SB 778 do not change the training timeline already in effect for supervisory employees. Employees in a management role are still required to receive anti-harassment training once every two years. This is the case whether they were trained in 2018 or during 2019, a clarification that SB 778 makes clear, despite the deadline for new trainings established in the law.
The biggest change to anti-harassment training within SB 1343 is that employees who are not supervisors also must receive training. These employees must be trained for one hour every two years. Non-supervisors who have not previously attended anti-harassment programs must be trained by the new deadline of January 1, 2021. This deadline was pushed back one year in SB 778 to give employers more time to meet the requirements.
Newly Hired and Promoted Employees
The new amendments also clarify that those hired into new non-supervisory positions, along with new hires in supervisory positions and those promoted into supervisory jobs, must be trained within six months of starting the position. As written, the amendment is arguably unclear on whether employees within those categories who are hired before January 1, 2021 must be trained within six months of their start date. Thus, employers should consider that the interpretation with the lowest risk of non-compliance is that anyone (nonsupervisory or supervisory) hired or promoted after the effective date of the previous law (SB1343), which was September 30, 2018, must be trained within six months.
As with previously established law, the training can be done individually or as part of a group, and may be completed in shorter segments adding up to the total time requirement. The DFEH is required to develop sample one- and two-hour online training courses on the prevention of sexual harassment for non-supervisory and supervisory personnel, respectively. Alternatively, employers may create their own anti-harassment training modules as long as they meet the compliance requirements.
In short, California companies with five or more employees should continue to watch for guidance from DFEH, but the good news is that many employers will have more time to implement any needed changes to their anti-harassment training programs. Employers should ensure that anti-harassment programs are comprehensive across staff, include temporary and seasonal employees, and meet the frequency and duration requirements for training.
1 See Neil M. Alexander, Kevin P. O’Neill, and Shaylon R. Lovell, What Do California’s New Sexual Harassment Training Requirements Mean for Staffing Firms?, Littler Insight (Feb. 14, 2019).
2 See Kevin P. O’Neill, Sebastian Chilco, and Marissa Dragoo, Time to Reset Your Anti-Harassment Training Schedule for Supervisory Employees in California, Littler ASAP (Jan. 17, 2019).