California Sets Trends Again

Gov. Arnold Schwarzenegger recently signed into law a measure requiring employers who employ 50 or more employees to provide sexual harassment training and education to all supervisory employees every two years. The new law, Assembly Bill 1825, defines "employer" as: any person regularly employing 50 or more persons, any person regularly receiving the services of 50 or more persons providing services pursuant to a contract or any person acting as an agent of an employer, directly or indirectly.

AB 1825 does not define "supervisor. " However, in California supervisory authority generally includes anyone having the authority to exercise independent judgment to hire, transfer, suspend, promote, discharge, assign, reward, or discipline other employees, direct the work of other employees or adjust their grievances or effectively recommend any of these actions.

Affected employers have until January 1, 2006 to provide two hours of sexual harassment training and education to all supervisory employees who are employed as of July 1, 2005. After January 1, 2006, affected employers must train new supervisors within six months of their assuming a supervisory position, and all supervisors once every two years. The training must involve "classroom" or other effective "interactive" training by "trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation." The requirement for interactive training makes it unlikely that video training would be sufficient without discussion, role-playing, and a question and answer session or other similar techniques led by a qualified trainer. Web-based training that includes interactive components provided by qualified organizations would meet the law's requirements.

Unfortunately, AB 1825 provides no protection from lawsuits if the employer offers the mandated training. In fact, the new law expressly provides that full compliance does not protect against sexual harassment claims by current or former employees. Nor does the new law provide for any mitigation of claims based on the employer's good faith compliance. For these and other reasons CLCA opposed AB 1825 as an example of well-intended labor legislation that adds costly new burdens to California employers.