California Attempts to Clarify Confusion Over Training in Segments

California Attempts to Clarify Confusion Over Training in Segments

Beginning January 1, 2021, an amendment to the California Code of Regulations section on prevention of harassment and discrimination (2 CCR § 11023 et seq) will take effect. Among other minor revisions, subsection (7) of the section on training (2 CCR § 11024(b)) has been amended in an attempt to clarify that it is acceptable to take California harassment prevention training in “segments” (or “modules”).  In fact, this practice was always acceptable under the Fair Employment and Housing Commission (“FEHC”) interpretation of the California law requiring harassment prevention training, as the former regulation clearly stated “[t]he training required by this section does not need to be completed in two consecutive hours.” The “new” section 7 now states “[t]he training required by this section may be completed in segments, so long as the combined segments meet or exceed the applicable hourly requirement.” 

Many providers have enjoyed the ability to provide training to their employees and managers in a modular fashion that allows them to “bookmark” and resume the course at a time that is convenient. While many might argue that such an approach allows the learner to forget what they have learned prior to resuming the course, this approach has long been used by many e-learning providers in California, and has become popular. Indeed, Syntrio has allowed users to stop the course and resume it at a later time on the understanding that the law only required that learners receive two hours of training (once every two years). The January 1 modification to the law does not change the requirement that learners receive two hours of training, but it does make clear that the modular approach is absolutely acceptable in that jurisdiction.

Leaving the regulation as it was would have been enough for the average interpreter to infer that a modular approach was always acceptable under California law, but some within the field advocated for this change as a means of allowing employers to meet their sexual harassment training obligation by “training managers and employees every year, but with shorter training courses.” At best, this advice is a slight of hand (in that the employer can – and always has been able to provide a modular structure to its training. At worst, informing an employer that they can provide (for example) two one-hour courses repeated annually (as the inference is clearly drawn) is non-compliant with California law. 

The California Fair Employment and Housing Act (“FEHA”) still requires that employers provide two hours of training for managers (and one hour of training for non-supervisory employees) to all employees every two years. The content requirements of this law are quite clear and indeed require unique content that meets or exceeds the two hour requirement to be given bi-annually. Please do not mistake the ability to modularize your instruction for the ability to simply repeat a shorter course on an annual basis, as this approach will not be compliant with the law. Instead, we encourage you to contact one of our account executives, who can help you design a plan that meets your training goals, whether your organization sees fit to assign a modular structure to your training over the course of the entire two-year period, or a longer course that meets the training obligation in one sitting. 

Syntrio is happy to discuss the positives of a modular structure such as flexibility, as well as the downside in such an approach (such as tracking challenges for individuals and loss of recognition of content). We look forward to assisting your organization in meeting its training goals for 2021 and beyond with a unique approach to e-learning and a team of experts who will help to point you in the right direction as to your obligations in a particular jurisdiction. 

Since 2007, Jonathan has practiced labor and employment law, with a focus on litigation, individual plaintiff and class action discrimination, harassment, and other employment-specific cases as well as focusing his practice toward advising employers on preventive practice. Jonathan has presented over 100 live employment discrimination and harassment prevention training courses across all 50 states.

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