When It Comes to Harassment Training, One Size Does Not Fit All

As of April 15, 2019, twenty-seven states either have: a. a legislative requirement that some employees receive training on the prevention of unlawful harassment in the workplace or b. proclaimed an administrative or legislative recommendation that harassment training take place among some portion of the jurisdiction’s workforce.

New York, California, Connecticut, Maine, Delaware – and to an extent D.C. – (which require training for state or other public-sector employees) have gone beyond many of their peers by enacting sweeping legislation that is applicable to large portions, if not all, of workforces in these states.

These specific states enacted their training laws to suit the needs of each individual jurisdiction. The needs of employers operating across multiple states were not contemplated by any of the legislatures when these laws were developed.
Enforcement practices are ignorant of the fact that a great many employers operate in more than one state that has a mandatory training law. The increased training requirements have created substantial burdens on multi-state employers, leaving them scratching their heads as to the best approach for training some or all of their workforces so the businesses can comply with the legislative requirements and ensure that the remainder of the workforce is not left behind in this important education.
Now employers are recognizing that a “check-the-box” approach to of getting training “out of the way” is not only ineffective, but also potentially damaging to workplace culture. Further, it has become crystal clear among harassment training experts that a “one-size-fits-all” approach simply does not work.

Different States Have Different Requirements

Compliance with the various state mandatory training laws is admittedly burdensome and time consuming, but it is important to understand the key differences among the five (discounting D.C.) states that require a large portion of their workforces to receive training.

Varying Time Requirements

California and Connecticut managers are subject to a two-hour training requirement, whereas New York, Maine and Delaware have no specific time requirements. Further, California’s non-supervisory employees must receive at least one hour of training in order to comply with the law in that state.

While the employer who allocates time for comprehensive training may see value in providing two hours of training to all employees, many employers believe that employees taking two hours of the work day to attend harassment training is more than they can spare where such a time requirement is not imposed by law.

Syntrio recently concluded that one hour is a “sweet spot” minimum to effectively communicate the necessary instruction to build the foundation for an effective harassment prevention program. Therefore, if you have managers in multiple states, it would be necessary to provide multiple versions of the manager training to account for the increased volume of training required by California and Connecticut.

Different Content Requirements

A non-state-specific course must by nature focus on federal law, which is the floor for harassment protection. Employees in states with mandatory training laws must receive more detailed state-specific information.

Aside from the basic principle that each mandatory training law requires special training for managers, much of the content and language requirements set forth by the states with mandatory training laws differs:

  • Protected classes vary state to state (which are additions to federal law), thereby creating the need for unique descriptions and scenarios.
  • Definitions of harassment and its interpretation are significantly different in various states (many states are broadening the definition of harassment and its historical analyses).
  • Manager duties prescribed by specific states differ (and conflict) with one another.
  • California requires training on abusive conduct, a state-specific concept and definition.
  • California requires training on gender identity, gender expression, and sexual orientation, none of which are uniformly protected by the federal law, Title VII of the Civil Rights Act of 1964.
  • California recommends training on categories other than sexual harassment such as age, race, and religion, while New York training specifies a focus on sexual harassment.
  • New York, Delaware, Connecticut, and Maine require detailed instructions on how and where to report a claim of harassment to the administrative agency within that state.
  • New York has a state-specific claims reporting process that must be included in the course. It is more detailed and thorough than those in other states.
  • New York requires information on New York City laws, that differ from state and federal law significantly.
  • Connecticut and Maine require line-by-line language from the state anti-discrimination laws and verbatim description of reporting procedures inapplicable in other states.

As you can see, attempts to rationalize and distill all of the above training requirements (which are part of the significant differences) have been futile. For this reason, Syntrio takes the approach that “one-size-fits-all” courseware that generalizes the above requirements is non-compliant for employees who are subject to state-specific harassment training requirements and it diminishes an employer’s ability to train its staff to requirements mandated by these states.

Time Is Money: Examining the Length of Harassment Training Courses

Harassment training costs money, both in employee time and actual dollars spent. Because of the significant resources that must be expended to train a workforce on the prevention of workplace harassment employers are understandably looking for the most “bang for the buck” on their investment. While efficiency in training is absolutely critical, there comes a point where a core harassment course is simply too brief to educate a workforce on the important concepts that encompass the world of harassment prevention. So where is the “happy medium?”

Five states (and the District of Columbia) currently require at least some employees to be trained on the prevention of harassment in the workplace. Of those five states, only California and Connecticut have statutorily mandated minimum training requirements, both requiring a minimum of two hours of training for managers. California recently enacted a law requiring non-supervisory employees to also be trained, but the state requires just one hour of training for non-managers on the same topics as the two hours of training required for managers. The other four jurisdictions requiring training (New York, Delaware, Maine and D.C.) did not set a minimum within their law, but New York infers in its guidance (and verified in response to a question on the subject) that 60+ minutes is the minimum amount of time required to train employees on the topics it considers mandatory for training to be in compliance with the law.

The previous statement is curious given the “FAQ” answer the New York Department of Human Rights (“NYDHR”) gives in response to the question “is there a minimum number of training hours employees must complete each year?” New York State answered that question with a seemingly unambiguous (yet very qualified) “[n]o. As long as they receive training that meets or exceeds the minimum standards.” In order to determine what those minimum standards are, it is necessary to examine the NYDHR's model training script that was released when that state’s law went into effect. While the script outlines the necessary topics for minimum training, the interactivity requirement in the state’s law certainly adds significant time over just reading through the 23 page script.

A representative from New York State responded to a telephone inquiry on the subject in January 2019 that the minimum training program was written and intended for an approximately 60 to 90 minute delivery time. Therefore, while the state set no minimum time within its law, it not only requires training that meets the minimum standards set forth in the law, but the State itself was unable to develop a program that lasts less than 60 minutes (and more likely longer).

California and Connecticut surely did not develop their statutory one- (California non-supervisors) and two-hour minimum time requirements without conducting significant research into the amount of time it would take to effectively and comprehensively train employees on these important subjects. While the skeptical employer may argue that those requirements were first developed 20 (Connecticut) and 12 (California) years ago, New York followed up with creating a course that was designed to take between 60-90 minutes. Therefore, it is clear from state Human Rights Department conclusions that an hour is the minimum amount of time a core harassment prevention course should be designed to take, and it is possible that state fair employment agencies subscribe to a “more is better” approach.

What to Look For When Selecting Your Training Methods

The aforementioned information should be taken into account when considering the use of an exclusive micro-learning platform or other short-form harassment prevention approach to your organization’s needs. While your state may not have a training requirement, it is certainly important to fulfill this important need as part of the duty your organization has to maintain a culture free of harassment. Even if the well-being of your employees and corporate culture take a back seat to preventing and defending lawsuits (which is not a recommended approach, yet one that we have heard over the years as a reality for some employers) the more than $1 billion annual harassment verdict and settlement costs routinely estimated over the last several years should be enough to convince the most skeptical of training customer that this is a subject well worth investing the proper time and dollars into doing correctly.

While there is no way to quantify what amount of training “works,” in over 12 years of experience providing hundreds of in-person and online training programs to companies of all sizes it has become clear that one hour is the minimum amount of time needed to effectively illustrate the concepts contained in such a broad and complicated topic as the prevention of workplace harassment. While one hour may seem brief, an expert trainer skilled in keeping the audience’s attention can effectively teach these concepts and provide ample time for the interactivity and learner engagement that is so critical to making the educational concepts stick. Anything less is truly doing the workforce a disservice, and nothing more than an attempt to “check the box” without providing an actual learning opportunity.

The most effective approach to training (as reinforced by the states that have developed their own mandatory minimum training scripts and set time limits) is a long-form core training course followed up by a learning continuum consisting of short form training that emphasizes particular concepts and issues. Such an approach builds the foundation necessary for continued learning and is without a doubt the most effective means of improving corporate culture and empowering your employees to work together to prevent incidents of harassment from occurring going forward.

Assembly Bill 1825 (AB 1825) is Turning 10 Years Old

What is the California Law Requiring Supervisor Training on Workplace Discrimination and Workplace Harassment?

California AB 1825 (Government Code § 12950.1) amended the California Fair Employment and Housing Act (FEHA), Government Code § 12900 et seq., to require employers of 50 or more employees to provide at least two hours of effective training to all supervisory employees on prevention of sexual harassment in the workplace; workplace discrimination (including racial discrimination, religious discrimination, age discrimination, sex discrimination, gender discrimination, and other types of discrimination in the workforce); and workplace retaliation at least once every two years.

A Brief History of AB 1825

AB 1825 and the Connecticut law after which it was modeled are the most rigorous workplace discrimination and workplace harassment training laws in the United States. When AB 1825 went into effect California employers scrambled to large law firms seeking the necessary EEO classes and EEO training necessary to maintain compliance with the new law. Clearly that training was expensive, as billable hours racked up.  Nevertheless, in the early years employers saw a discernible decline in age discrimination, gender discrimination, and race discrimination. Employers and their supervisors also learned useful human resources and management practices regarding hiring, lawful termination, employee privacy, and family and medical leave act issues that contributed to a more positive overall working environment immediately.

The Impact of Employer Compliance with AB 1825

Undoubtedly, employers have a responsibility to eliminate workplace discrimination and workplace harassment.  By allowing these unlawful practices to flourish in the workplace, employers pay the high price of litigation costs in addition to low morale, decreased productivity, and an overall negative reputation in the community. In the ten years since AB 1825 was enacted, employers who once dreaded the taking up supervisor work time for training courses now welcome the idea of allowing their supervisors the time to learn the latest laws and tactics to reduce unlawful workplace discrimination and workplace harassment. Modern employers understand that not only are they able to avoid employee lawsuits, they also gain a more productive overall workforce when their businesses are free from hostile environments. In short, effective anti-discrimination training is not only a legal requirement; it is a prudent business decision.

Changes in California Discrimination Law Mean Changes in Employer Policies

In addition to fostering a positive, non-discriminatory work environment, California’s discrimination laws are ever changing. Businesses and their supervisors absolutely must learn about changes in the law. For example, in 2013 California Governor Jerry Brown signed into law bills that took effect at the beginning of 2014 changing definitions of discrimination against military victims (AB 556) and victims of certain violent crimes (SB 292). New definitions can mean existing EEO policies are now out of date and non-compliant with California and federal law. By keeping regular training schedules you can be sure that your business is compliant with the latest laws regarding workplace discrimination and workplace harassment in addition to maintaining compliance with the bi-annual training requirements set forth by AB 1825.

Cost-Effective Electronic Methods of AB 1825 Compliance can Save Time and Productivity

With the advent of e-learning and online compliance training, developing equal employment opportunity programs and policies that are AB 1825 compliant has become easier and more cost-effective than ever. Certified training companies like Syntrio, Inc. provide two-hour training courses that meet the requirements of AB 1825 with respect to discrimination in the workforce; sexual harassment prevention; retaliation prevention; lawful (non-discriminatory) hiring, interviewing and termination; workplace ethics, cultural diversity and other relevant topics.

Syntrio, Inc. specializes in providing AB 1825 compliant ethics and HR compliance training in an extremely comprehensive yet cost-effective and time sensitive manner. Contact us today at 888-289-6670 to discuss the ways Syntrio, Inc. can help your supervisors and HR Professionals ensure that they are up to date with California equality and workplace diversity training.

 

The Repercussions of Ignoring Sexual Harassment Training Mandates

The recent claim of sexual harassment against the Mayor of San Diego, has many of us wondering “how did this happen?”

San Diego has a sexual harassment training program which is mandatory for all employees to complete within six months of employment. Yet, the mayor’s office appears to have cancelled the training numerous times. Is this a case where training programs just “fell through the cracks”?  Why was Mayor  Filner allowed to abstain from this vital training?

Training and compliance educations are forms of protection, especially important trainings such as sexual harassment awareness and prevention. Businesses tend to focus on ensuring managers and employees complete this type of training; however, a company’s most visible and prominent figures (read that to mean the most vulnerable) are not usually required to complete this important training exercise. Why are company Presidents and CEOs allowed a free pass?

The people at the top (usually high level employees of the executive level) often claim to be too busy to attend this type of valuable training. Let’s face it—No one wants to get too pushy with the boss.  Sadly what is also the case is that HR Departments avoid demonstrating their antiquated, instructor-led training to the boss. They really want don’t want the boss sitting and observing them in action.  Isn’t this a form of failing the boss, the company, and the employees HR is responsible for?

According to the attorney representing Mayor Filner, the mayor might never have been sued for sexual harassment had he been properly trained. Of course, none of us know for sure what would or would not have happened had he been properly trained. What we do know is the city of San Diego would have limited liability in the recent lawsuit if they could prove that the training requirement had been met.

When a complaint is filed with the EEOC, one of the first questions asked is what training took place and when.  The ability to prove that an organization took proactive steps to minimize discrimination through training is essential to reducing or avoiding liability. If you are asked about your organization’s harassment training records, do you feel confident that your liability risk is mitigated?

Contact Syntrio today to learn more about sexual harassment training and how it can help you and your business avoid unnecessary complications and liability.