We're Here! California Harassment Prevention Training Regulations Are Finally Final

At long last, employers can act with certainty in planning and implementing their anti-harassment training programs for their supervisors located in California.

AB 1825, the regulation drafted by the Fair Employment and Housing Commission (FEHC) governing harassment prevention training for supervisors located in California, is now final and will become effective on August 17, 2007.  This effective date is 30 days following July 18, 2007, the date that the state Office of Administrative Law (OAL) approved the regulations.

The FEHC had originally submitted its final proposed regulations to the state in December 2007, but the OAL disapproved of them, demanding more specific definitions. The OAL raised no concerns about the regulations' description of the content and length requirements of the harassment training. 

On February 27, 2007, the FEHC posted updated regulations in response to the OAL's order and notified the public that the OAL had preliminarily approved the new regulations. Following a public hearing on March 28, 2007, the FEHC staff issued another set of revised regulations. The FEHC submitted those regulations to the OAL for approval in June 2007. Now that the OAL has approved the regulations, they will become effective on August 17, 2007.

Definitional Changes

In essence, the OAL wanted the FEHC to specify more precisely who is competent to develop and deliver harassment training under AB 1825. The FEHC has done just that, and more. The latest proposed regulations delete the term "subject matter expert" and instead, add specificity to the definition of "trainer."   

Under the final regulations, all courses must be taught by qualified trainers. Such trainers must have a minimum of two years of experience in the field of harassment, discrimination, and retaliation prevention law. Trainers can be: 

(A) Attorneys admitted for three or more years to the bar of any state in the United States and whose practice includes employment law under California and/or federal harassment, discrimination and retaliation law; 

(B) "Human resource professionals" or "harassment prevention consultants" working as employees or independent contractors with a minimum of two or more years of practical experience in one or more of the following:  a) designing or conducting discrimination, retaliation and sexual harassment prevention training; b) responding to sexual harassment complaints or other discrimination complaints; c) conducting investigations of sexual harassment complaints; or d) advising employers or employees regarding discrimination, retaliation and sexual harassment prevention; or 

(C) "Professors or instructors" in law schools, colleges or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching about California or federal employment law. 

Individuals who do not meet the definition of "trainer" may team teach with a trainer in classroom training or webinar sessions, so long as the trainer supervises them and remains available throughout the training to answer questions. In e-learning arrangements, the trainer must be able to answer any questions about the training within two business days. 

The pre-February 2007 regulations stated that training content must be developed by an instructional designer. Now, content must be developed by an instructional designer and a trainer.

Impact on Employers

Employers now have clarity regarding who qualifies to develop and deliver their harassment prevention training programs. However, it is now clear that employers will need to ensure that their trainers are qualified under the regulations, and are involved in the most important aspects of the training process - from program development to answering participants' questions. 

For employers using internal staff to develop and deliver training, it is imperative that they review the credentials of the human resources and/or legal professionals involved, for the rule applies to in-house staff and outside experts. Although a recent college graduate or newly-transferred accounting clerk may be working in the human resources department, he or she will not necessarily qualify as a trainer under the regulations. Nor will a lawyer whose specialty lies in a field other than employment law qualify as a trainer. 

Employers using an external vendor to develop and deliver training should avoid hiring companies who offer lots of training courses but do not have qualified trainers with subject matter expertise developing the harassment prevention training content. Similarly, they should avoid hiring companies who only recently decided to get into the harassment prevention training business to take advantage of AB 1825's requirements.

Brightline's Approach

Brightline has modified its online course, Preventing Workplace Harassment-California Supervisors' Edition, to ensure that the course addresses each of the new requirements of the AB 1825 regulations.  Our online courses and classroom training have always been developed by legal professionals with expertise in employment law and harassment prevention and instructional designers whose experience exceeds that which is required by the AB 1825 regulations. 

In addition, Brightline has taken the extra step of offering employers a service to help it comply with the requirement that online course participants' questions be answered by a qualified trainer within two business days. We recognize that in-house human resources and legal professionals may not be able to answer training-related questions by such a tight deadline. Our Ask the Expert service allows training participants to submit questions by phone or via the internet and have those questions answered by one of our trainers within two business days. For further detail about Brightline's "Ask the Expert" service, please visit http://www.brightlinecompliance.com/training/ask-the-expert.html.

The revised regulations provide much-needed specificity to important definitions, and further emphasize the importance of subject matter experts to all aspects of anti-harassment training development and delivery. To learn more about the regulations, please visit the Fair Employment and Housing Commission's web site (www.fehc.ca.gov), or contact us.