On August 30, 2019, California Governor Gavin Newsom signed Senate Bill (SB) 778 into law, thereby giving employers more time to comply with the state’s sexual harassment training requirement. In September 2018, former governor Jerry Brown signed SB 1343, requiring California employers with five or more employees to provide sexual harassment training to all supervisory and nonsupervisory employees by January 1, 2020. SB 778 amends Section 12950.1 of the Government Code such that employers now have until January 1, 2021, to comply with the sexual harassment training requirements.

SB 1343 had amended the California Fair Employment and Housing Act (FEHA) by expanding the reach of the harassment training laws to cover more employers and more employees. Previously, employers with 50 or more employees were required to provide sexual harassment training to supervisors every two years. That requirement remains in place, and large employers must continue to train supervisors on the two-year cycle. SB 1343 expanded the law to include employers with five or more employees. The amended law had also broadened employers’ obligations by requiring that employers provide at least one hour of training every two years to nonsupervisory employees (in addition to the two hours they provide to supervisors). The original deadline to meet these requirements was January 1, 2020.

Adding to the logistical challenges of training new large groups of employees in a short period of time, in 2019, the California Department of Fair Employment and Housing (DFEH published an interpretation of SB 1343 stating that any employee who completed the training in 2018 would need to receive it again in 2019, rather than waiting for the end of the two-year cycle. To avoid a repeat of that interpretation with the new extended deadline in place, the amended law clarifies that those trained in 2019 do not need to repeat the training until two years later.

Because SB 778 was labeled an “urgency statute,” it went into effect immediately upon signing, and these requirements will now go into effect in January 2021. According to the law, “[t]he facts constituting the necessity are: In order to encourage maximum employer compliance by ensuring general awareness of the new requirements governing sexual harassment training, it is necessary for this act to take effect immediately.”

Employers should note that the amended law does not provide an extension of the training deadline to all types of employees. Seasonal, temporary, or other employees who are hired to work for less than six months must receive training within 30 calendar days after the hire date, or within 100 hours worked, whichever occurs first, beginning January 1, 2020.

Key Takeaways

SB 778 does not change employers’ obligations to train their employees; rather, it only changes the date of compliance. Here is a summary of the requirements on California employers.

Covered Employers

Employers with five or more employees must provide “classroom or other effective interactive training and education regarding sexual harassment.”

Timing

The deadline to comply with the new training obligations is January 1, 2021. (Employers with 50 or more employees were already required to train supervisors every two years.) The law also states that an employer that has “provided this training and education to an employee in 2019 is not required to provide refresher training and education again until two years thereafter.”

Covered employers must provide this training to each employee in California once every two years.

Supervisory / Nonsupervisory Employees

Employers’ obligations to supervisory employees are as follows:

• Employers must provide at least two hours of training to all supervisory employees in California.
• Employers must provide new supervisory employees training “within 6 months of the assumption of a supervisory position.”

Employers’ obligations to nonsupervisory employees are as follows:

• Employers must provide at least one hour of training to all nonsupervisory employees in California.
• Employers must provide new nonsupervisory employees training “within 6 months of hire.”

Components of a Training Program

SB 778 reiterates to employers the parameters of a compliant training program. These include the following:

• Employers may conduct harassment training “in conjunction with other training.”
• Employees may complete their training “individually or as part of a group presentation.”
• Employees may complete their training programs “in shorter segments, as long as the applicable hourly total requirement is met.”
• The training program must “include information and practical guidance regarding the federal and state statutory provisions concerning” sexual harassment. The training should also include prevention of “abusive conduct” (commonly described as “workplace bullying”).
• A compliant training program must “include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.” Examples should also include “harassment based on gender identity, gender expression, and sexual orientation.”
• The instructors or trainers must have “knowledge and expertise in the prevention of harassment, discrimination, and retaliation.”
• FEHA will “provide a method for employees who have completed the training to save electronically and print a certificate of completion.”

Existing state agency regulations include further details specifying the nature of the training.