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.
Last year, California enacted SB 1343,1 amending California’s Fair Employment and Housing Act (FEHA) to expand employers' sexual harassment training requirements. Previously, employers with 50 or more employees had to provide their supervisory personnel with two hours of sexual harassment prevention training every two years. Under the revised law, employers with five or more employees, including temporary or seasonal employees, must administer at least two hours of sexual harassment prevention training to all supervisory personnel and at least one hour of sexual harassment prevention training to all non-supervisory personnel. As a result, the revised law presents new challenges for the staffing firm industry and its diverse working environments, which include employees engaged in brief or temporary work assignments, and individuals performing work intermittently as labor needs become available.
General Training Requirements
Many aspects of SB 1343 are still vague; we expect additional regulatory clarification in coming months. Among these uncertainties is the actual start date for compliance. SB 1343 stipulates the initial round of trainings must be completed by January 1, 2020, and once every two years thereafter. However, the section of the bill that discusses seasonal and temporary employees, including those employees hired to work less than six months, identifies a start date of January 1, 2020.2 Accordingly, the initial deadlines for completion of training by staffing firms are ambiguous.
Flexibility exists for obtaining compliance with the new amendment, such as: (1) training may be completed by employees individually or as part of a group; and (2) training may be completed in shorter segments, so long as the applicable hourly requirement is met. The amendment also allows for employers to design and develop their own training module within the required parameters set forth in the amendment, but it also requires the California Department of Fair Employment and Housing to develop one- and two-hour online training courses on the prevention of sexual harassment in the workplace for both respective employee personnel classifications.3 Thus, employers may choose which option works best for their business.
Further, employers are awaiting additional guidance on whether a piggy-back rule exists for SB 1343. A piggy-back rule would allow newly hired employees who already received sexual harassment training from former employers to carry over (piggy back) their training dates for compliance purposes, without need for retraining at the commencement of the new employment.
Challenges for Staffing Companies
Newly hired personnel must receive their anti-harassment training within six months of starting the position. However, employers engaged in the employment of temporary or seasonal employees, or any employee that is hired to work for less than six months, must provide anti-sexual harassment training within 30 calendar days of hire or within 100 hours worked if the employee is to work for a period of less than six months, whichever occurs first. This is a deadline to complete the training, not a threshold of days worked by the seasonal or temporary employees. For example, say a temporary employee hired by a staffing firm works three days for a client and never works again, but the employee is still an active payroll employee for the staffing firm. According to the amended law, the staffing firm will still be expected to administer the anti-sexual harassment training to this temporary employee by the 30th calendar day of employment. Because this law is effective in California, employees must also be paid for the time spent receiving the sexual harassment prevention training. However, further clarification is being sought regarding whether staffing firms requiring their applicants (not yet employees) to complete the mandatory sexual harassment training prior to starting or being assigned to a client, must pay the applicant for time spent completing the training.
Either way, as a practical matter, most staffing firms should have their new temporary employees complete the training during the onboarding period and before engaging with clients on work assignments. This approach ensures the temporary employee receives the training, which helps the staffing firm stay compliant with the law from the start. If not, the staffing firm faces a logistical hurdle in trying to contact the employee, who may have worked three days at the beginning of employment, and has since not worked again or perhaps cannot be located or contacted to complete the training within the 30-day compliance period. It is unclear whether making the training available will be deemed sufficient compliance.
At this point, failure to comply with the new amendment’s training requirements does not trigger a monetary penalty; rather, if the DFEH finds that the law has been violated, its SB 1343 FAQ sheet states that the DFEH “will work with employers to obtain compliance with the law” and the controlling statute states that the department may seek an order requiring the employer to comply with the bill’s requirements.4
Although staffing firms have some time before the initial compliance deadline, it is recommended that they start providing such training during the onboarding process and to strategically plan the best method to roll it out to the existing workforce.
1 The amendment is codified at §§ 12950 and 12950.1 of the California Government Code.
3 The DFEH’s SB 1343 FAQ sheet indicates that the DFEH expects to have these courses available by “late 2019.” In the meantime, the DFEH has issued a “toolkit” for sexual harassment prevention, which includes a sample training presentation that employers may use in conjunction with a qualified trainer, as defined in the existing DFEH regulations at 2 C.C.R. § 11024).
4 Cal. Gov’t Code § 12590.1(f)