The California Fair Employment and Housing Act makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employers knowledge. The act requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender, as specified, to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.

This bill would instead require an employer who employs 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter, as specified. The bill would require the Department of Fair Employment and Housing to develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplace, as specified, and to post the courses on the departments Internet Web site. The bill would also require the department to make existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the departments Internet Web site.

The California Fair Employment and Housing Act makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employers knowledge. The act requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender, as specified, to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.

This bill would instead require an employer who employs 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter, as specified. The bill would require the Department of Fair Employment and Housing to develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplace, as specified, and to post the courses on the departments Internet Web site. The bill would also require the department to make existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the departments Internet Web site.

The California Fair Employment and Housing Act makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employers knowledge. The act requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender, as specified, to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.

This bill would instead require an employer who employs 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter, as specified. The bill would require the Department of Fair Employment and Housing to develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplace, as specified, and to post the courses on the departments Internet Web site. The bill would also require the department to provide make existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the departments Internet Web site.

The California Fair Employment and Housing Act makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employers knowledge. The act requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender, as specified, to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.

This bill would instead require an employer who employs 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter, as specified. The bill would require the Department of Fair Employment and Housing to develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplace, as specified, and to post the courses on the departments Internet Web site. The bill would also require the department to provide existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the departments Internet Web site.

The California Fair Employment and Housing Act makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employers knowledge. The act requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender, as specified, to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.

This bill would instead require an employer who employs 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years after that, thereafter, as specified. The bill would require the Department of Fair Employment and Housing to develop or obtain a 1-hour and 2-hour online training course courses on the prevention of sexual harassment in the workplace, as specified, and to post it so that it is available for streaming or downloading the courses on the departments Internet Web site. The bill would also require the department to provide existing informational posters and fact sheets, as well as the online training course courses regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the departments Internet Web site.

The California Fair Employment and Housing Act makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employers knowledge. The act requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender, as specified, to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.

This bill would instead require an employer who employs 5 or more employees employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all employees by January 1, 2020, and once every 2 years after that, as specified. The bill would require the Department of Fair Employment and Housing to develop or obtain a 2-hour video online training course on the prevention of sexual harassment in the workplace, as specified, and to post it so that it is available for streaming or downloading on the departments Internet Web site. The bill would also require the department to provide existing informational posters and fact sheets, as well as the Internet online training videos course regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the departments Internet Web site.

The California Fair Employment and Housing Act makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employers knowledge. The act requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender, as specified, to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.

This bill would instead require an employer who employs 5 or more employees to provide at least 2 hours of sexual harassment training to all employees by January 1, 2020, and once every 2 years after that, as specified. The bill would require the Department of Fair Employment and Housing to develop a 2-hour video training course on the prevention of sexual harassment in the workplace workplace, as specified, and to post it so that it available for streaming or downloading on the departments Internet Web site. The bill would also require the department to provide existing informational posters and information posters and fact sheets, as well as the Internet training videos regarding sexual harassment prevention, available to employers, in employers and to members of the public in specified alternate languages. languages on the departments Internet Web site.

The California Fair Employment and Housing Act makes specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employers knowledge. The act requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender, as specified, to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.

This bill would instead require an employer who employs 5 or more employees to provide at least 2 hours of sexual harassment training to all employees by January 1, 2020, and once every 2 years after that, as specified. The bill would require the Department of Fair Employment and Housing to develop a 2-hour video training course on the prevention of sexual harassment in the workplace and to post it on the departments Internet Web site. The bill would also require the department to provide existing informational posters and information regarding sexual harassment prevention, available to employers, in alternate languages.

 UNFINISHED BUSINESS  

Bill No: SB 1343

Author:

:

Vote:

SENATE LABOR & IND. REL. COMMITTEE: 4-0, 4/11/18

AYES: Pan, Jackson, Mitchell, Wieckowski

NO VOTE RECORDED: Stone

SENATE JUDICIARY COMMITTEE: 7-0, 4/17/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: 6-0, 5/25/18

AYES: Lara, Bates, Beall, Bradford, Hill, Wiener

NO VOTE RECORDED: Nielsen

SENATE FLOOR: 38-0, 5/30/18

AYES: Allen, Anderson, Atkins, Bates, Beall, Berryhill, Bradford, Cannella, Dodd, Fuller, Gaines, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Newman, Nguyen, Nielsen, Pan, Portantino, Roth, Skinner, Stern, Stone, Vidak, Wieckowski, Wiener, Wilk

NO VOTE RECORDED: De León

ASSEMBLY FLOOR: 78-0, 8/30/18 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill reduces the sexual harassment training requirement threshold from employers with 50 or more employees to employers with five or more employees, include non-supervisorial employees in the training, and requires that the Department of Fair Employment and Housing develop an online training course and make it available on the Department’s Web site.

Assembly Amendments

clarify that non-supervisorial employees must attend at least one hour of sexual harassment training, provide distinct requirements for temporary employees, and make minor and technical changes.

ANALYSIS:

Existing law:

1. Prohibits an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire, discriminate against, or harass the person. (Government Code §12940)
2. Prohibits explicitly an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code §12940(k))
3. Requires each employer to post a poster on discrimination in employment, which includes information relation to the illegality of sexual harassment, in a prominent and accessible location in the workplace. (Government Code §12950)
4. Requires each employer to provide his or her employees with an information sheet developed by the Department of Fair Employment and Housing (DFEH) or the employer on sexual harassment and must include specified information, such as the a definition and description of sexual harassment, how sexual harassment is illegal, and what remedies are available to the employee. (Government Code §12950)
5. Requires employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment to all supervisory employees within six months of assuming supervisorial duties and once every two years. (Government Code §12950.1)
6. Extends liability for sexual harassment education and training to any person who regularly receives 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, the state, or any political or civil subdivision of the state, and cities. (Government Code §12950.1)
7. Provides that any person or class claiming to be aggrieved may file a complaint with DFEH, but permits the hiring of private counsel to represent the aggrieved person or class once the claim has been filed. (Government Code §§12960-12962)

This bill:

1. Reduces the employment threshold for harassment training from 50 employees to five employees.
2. Expands the number of employees who are required to attend the training from supervisorial employees to all employees with supervisors required to be trained for two hours and non-supervisorial employees trained for one hour. The training must be provided within six months of the employee being hired and once every two years.
3. Requires that all employers must provide the sexual harassment training by January 1, 2020, but does not need to be provided again if the sexual harassment training was provided after January 1, 2019, to an employee.
4. Provides that the sexual harassment training may be done with other employees, as a group or an individual, and broken up into shorter time segments as long as the two hour requirement is reached.
5. Requires that DFEH provide a method to employees who have completed the training to print out a certificate of completion.
6. Requires the DFEH to develop and make available on its Web site online training courses on the prevention of sexual harassment in the workplace. The training course must contain an interactive feature which requires the worker to respond to questions periodically in order for the training course to continue.
7. Permits an employer, in order to comply with the training requirement, to develop a training module instead of the online training course developed by DFEH.
8. Requires, starting on January 1, 2020, that temporary or seasonal employees employed for less than six months must be trained by the employer within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first.
9. Requires, starting January 1, 2020, that sexual harassment prevention training for migrant and seasonal agricultural workers, must be consistent with training for nonsupervisory employees that an agricultural employer is currently required to provide under existing law.
10. Requires that the sexual harassment information sheet developed by DFEH or the employer on sexual harassment includes a link to the online training course developed by DFEH.
11. Requires that the DFEH makes the sexual harassment information sheet and online course available in English, Spanish, Simplified Chinese, Tagalog, Vietnamese, Korean, and any other language that is spoken by a “substantial number of non-English-speaking people,” as defined under existing law, and DFEH must provide the translated materials on its Web site. This bill also requires that the online course be both dubbed and subtitled in the languages described above, with the exception of dubbing in English.

Comments

Need for this bill? The author states the following:

The prevalence of sexual harassment in the workplace has taken center stage following the #MeToo movement. In the Legislature, we have experienced our own set of challenges to review and address issues with our policies and procedures around this issue. We established a joint-subcommittee to hear from experts and have learned that the legislature needs to focus on culture change, adopting strong policies, procedures, and training. As the co-chair of this joint-subcommittee, I am committed to ensuring that not only the Legislature begins to take steps to change our culture, but also the state as a whole. Currently, employers with less than fifty employees have no requirement to train managers, supervisors, or rank and file employees on sexual harassment prevention. Employers with fifty employees or more are only mandated to train supervisory employees every two years for a minimum of two hours. The only information provided to non- supervisory employees on the matter is through a posted notice – this is, at best insufficient.

According to the U.S. Equal Employment Opportunity Commission’s (EEOC) Select Task Force on Harassment in the Workplace, there are a series of factors that put employees at a higher risk of experiencing harassment. Some of these risk factors include: a young workforce, isolated workplaces, workplaces with significant power disparities, and workplaces that rely on customer service or client satisfaction. Women—particularly women of color—are more likely to work in environments with higher propensity of these risk factors.

Millions of California’s most vulnerable workers are not being informed of their rights and protections nor trained on how to detect work-inappropriate behaviors and how to report those behaviors. In order for an adequate culture shift to take place around this issue, all employees need to feel confident that they are adequately protected by their employers policies and procedures when it comes to safeguarding against sexual harassment. Although numerous reports state that traditional training alone is insufficient, SB 1343 takes a modest step toward a more equitable workplace, by establishing a base-standard requirement that all employees receive information and training relating to their rights and responsibilities around sexual harassment.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Assembly Appropriations Committee:

1. Unknown, but potentially significant, General Fund costs for DFEH to develop training courses and respond to inquiries from employers and employees. While the expansion of sexual harassment training requirements to more employers and employees is unlikely to generate significant costs, this bill's new administrative requirements will. Specifically, major potential cost drivers include:
2. Developing and implementing the certificate process, including creating an online reporting mechanism and a way for DFEH to verify employer compliance.
3. Developing online training courses and responding to questions from employers and employees.
4. Unknown costs across all state departments related to the expansion of sexual harassment prevention training to nonsupervisory employees. (General Fund and Special Fund.)

SUPPORT: (Verified 8/28/18)

Association of California Healthcare Districts

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California Manufacturers & Technology Association

California Special Districts Association

California State Association of Counties

California Teamsters Public Affairs Council

Consumer Attorneys of California

Engineers and Scientist of CA, IFPTE Local 20, AFL-CIO

International Longshore & Warehouse Union

Professional and Technical Engineers, IFPTE Local 21, AFL-CIO

SAG-AFTRA

San Francisco Unified School District

The Women’s Foundation of California

UNITE-HERE Local 11

UNITE-HERE, AFL-CIO

Utility Workers of America

OPPOSITION: (Verified 8/28/18)

None received

ARGUMENTS IN SUPPORT: The Consumer Attorneys of California (CAOC), writing in support of SB 1343, state the following:

Current law requires employers with 50 or more employees to provide sexual harassment prevention training to supervisors, however, current law does little to provide training for employees generally. The recent movement to address workplace harassment has demonstrated that regular employees, rather than supervisors, are generally the catalyst for change and accountability in the workforce. Therefore, if regular employees do not know how to exercise their rights or effectively address harassment, sexual harassment will remain pervasive in the workforce.

SB 1343 is a good first step to ensure that employees are trained to recognize and address workplace sexual harassment, thereby holding employers accountable and creating safe work environments.

ASSEMBLY FLOOR: 78-0, 8/30/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rivas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Choi, Obernolte

Prepared by:

8/30/18 20:45:47

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1343

Author:(Mitchell)

As Amended Ver:August 23, 2018

Majority vote

SENATE VOTE: 38-0

SUMMARY: Expands sexual harassment prevention training. Specifically, this bill:

1. Mandates an employer who employs five or more employees, including temporary or seasonal employees, to provide at least two hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020 and once every two years thereafter, as specified.
2. Requires the Department of Fair Employment and Housing (DFEH) to develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplaces, as specified, and to post the courses on the Departments Web site.
3. Requires DFEH to provide existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment preventions in certain languages as specified.

EXISTING LAW:

1. Prohibits employment discrimination and harassment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. (Government Code Section 12940)
2. Requires an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code Section 12940(k))
3. Requires an employer to display a poster on discrimination in employment, which includes information related to the illegality of sexual harassment, in a prominent and accessible location in the workplace. (Government Code Section 12950)
4. Requires an employer to provide employees with an information sheet developed by the DFEH or the employer on sexual harassment and must include specified information, such as a definition and description of sexual harassment, the illegality of sexual harassment, and what remedies are available to the employee. (Government Code Section 12950)
5. Requires employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment to all supervisory employees within six months of assuming supervisorial duties and then once every two years. (Government Code Section 12950.1)

FISCAL: According to the Assembly Appropriations Committee:

1. Unknown, but potentially significant, General Fund costs for DFEH to develop training courses and respond to inquiries from employers and employees. While the expansion of sexual harassment training requirements to more employers and employees is unlikely to generate significant costs, this bill's new administrative requirements will. Specifically, major potential cost drivers include:
2. Developing and implementing the certificate process, including creating an online reporting mechanism and a way for DFEH to verify employer compliance.
3. Developing online training courses and responding to questions from employers and employees.
4. Unknown costs across all state departments related to the expansion of sexual harassment prevention training to nonsupervisory employees. (General Fund and Special Fund.)

COMMENT: According to the author, "As the nation faces the uproar against sexual harassment and assault in the workplace, both experts who study the issue and the agency that enforces laws against it say that it is women at the bottom of the labor market who suffer sexual harassment most often and are least likely to see any justice." The author continues, "Committed leadership, accountability, and strong harassment policies and complaint systems are essential components of successful harassment prevention strategies – but only if employees are actively being informed about them."

Analysis Prepared by: Jennifer Richard / L. & E. / (916) 319-2091 FN: 0004696

SENATE THIRD READING

STR Bill Id:

Author:(Mitchell)

As Amended Ver:August 20, 2018

Majority vote

SENATE VOTE: 38-0

SUMMARY: Expands sexual harassment prevention training. Specifically, this bill:

1. Mandates an employer who employs five or more employees, including temporary or seasonal employees, to provide at least two hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every two years thereafter, as specified.
2. Requires the Department of Fair Employment and Housing (DFEH) to develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplaces, as specified, and to post the courses on the Department's Web site.
3. Requires DFEH to provide existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment preventions in certain languages as specified.

EXISTING LAW:

1. Prohibits employment discrimination and harassment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. (Government Code Section 12940)
2. Requires an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code Section 12940(k))
3. Requires an employer to display a poster on discrimination in employment, which includes information related to the illegality of sexual harassment, in a prominent and accessible location in the workplace. (Government Code Section 12950)
4. Requires an employer to provide employees with an information sheet developed by the DFEH or the employer on sexual harassment and must include specified information, such as a definition and description of sexual harassment, the illegality of sexual harassment, and what remedies are available to the employee. (Government Code Section 12950)
5. Requires employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment to all supervisory employees within six months of assuming supervisorial duties and then once every two years. (Government Code Section 12950.1)

FISCAL: According to the Assembly Appropriations Committee:

1. Unknown, but potentially significant, General Fund costs for DFEH to develop training courses and respond to inquiries from employers and employees. While the expansion of sexual harassment training requirements to more employers and employees is unlikely to generate significant costs, this bill's new administrative requirements will. Specifically, major potential cost drivers include:
2. Developing and implementing the certificate process, including creating an online reporting mechanism and a way for DFEH to verify employer compliance.
3. Developing online training courses and responding to questions from employers and employees.
4. Unknown costs across all state departments related to the expansion of sexual harassment prevention training to nonsupervisory employees. (General Fund and Special Fund.)

COMMENT: According to the author, "As the nation faces the uproar against sexual harassment and assault in the workplace, both experts who study the issue and the agency that enforces laws against it say that it is women at the bottom of the labor market who suffer sexual harassment most often and are least likely to see any justice." The author continues, "Committed leadership, accountability, and strong harassment policies and complaint systems are essential components of successful harassment prevention strategies – but only if employees are actively being informed about them."

Analysis Prepared by: Jennifer Richard / L. & E. / (916) 319-2091 FN: 0004315

Date of Hearing: August 8, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 1343

Author:(Mitchell) – As Amended Ver:June 19, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill expands existing sexual harassment training requirements to employers with five or more employees and requires non-supervisory employees to attend the training. This bill also creates new requirements for the Department of Fair Employment and Housing (DFEH), including that DFEH develop a method for employers to save and print a certificate of completion and obtain or develop online training courses, as specified.

FISCAL EFFECT:

1. Unknown, but potentially significant, General Fund costs for DFEH to develop training courses and respond to inquiries from employers and employees. While the expansion of sexual harassment training requirements to more employers and employees is unlikely to generate significant costs, SB 1343’s new administrative requirements will. Specifically, major potential cost drivers include:
   1. Developing and implementing the certificate process, including creating an online reporting mechanism and a way for DFEH to verify employer compliance.
   2. Developing online training courses and responding to questions from employers and employees. SB 1343, as drafted, is unclear on some of the training courses’ parameters and whether current regulations around whether at trainer has to be available to answer questions will apply.
2. Unknown costs across all state departments related to the expansion of sexual harassment prevention training to nonsupervisory employees. (General Fund and Special Fund.)

COMMENTS:

1. Background and purpose. FEHA requires all employers with 50 or more employees to provide at least two hours of sexual harassment training to every supervisory employee within six months of being hired into that position and once every two years thereafter. It also requires employers with five or more employees to post a copy of a poster discussing prohibitions against discrimination and harassment.

According to supporters, SB 1343 will help ensure employees are trained to recognize and address workplace sexual harassment. The Consumer Attorneys of California, a supporter, argues that current training requirements do little to provide training for employees generally, and regular employees, not supervisory employees, are the catalyst for change and accountability in the workforce.

1. Related legislation. There are a number of bills introduced in the second year of the 2017-18 Legislative Session that expand sexual harassment prevention training requirements or develop anti-discrimination policies. Two of those bills are also being heard today in this committee: SB 1300 (Jackson), which expands FEHA’s anti-sexual harassment training requirements to apply to all covered employers and to non-supervisory employees, among other provisions; and SB 1223 (Galgiani), which directs the California Department of Industrial Relations (DIR) to develop a harassment and discrimination prevention policy and training standard for the construction industry.

In addition to the above-cited bills, AB 3081 (Gonzalez Fletcher) includes provisions in the Labor Code requiring employers with more than 25 employees to train all nonsupervisory employees at the time of hire and at least once every two years about identifying, preventing, and reporting sexual harassment in the workplace. AB 2338 (Levine) requires talent agencies to provide training on sexual harassment to employees. AB 2358 (Carrillo) requires apprenticeship programs to have policies and provide training to protect apprentices from harassment. All three bills’ provisions are under the jurisdiction of the Department of Industrial Relations (DIR) and are pending in the Senate Appropriations Committee.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: June 27, 2018

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Tony Thurmond, Chair

SBPCA Bill Id:SB 1343

Author:(Mitchell) – As Amended Ver:June 19, 2018

SENATE VOTE: 38-0

SUBJECT: Employers: sexual harassment training: requirements

SUMMARY: Reduces the sexual harassment training requirement threshold from employers with 50 or more employees to employers with five or more employees, includes non-supervisorial employees in the training, and requires the Department of Fair Employment and Housing (DFEH) to develop an online training course and make it available on the DFEH’s website. Specifically, this bill:

1. Reduces the employment threshold for harassment training from 50 employees to five employees.
2. Expands the type of employees who are required to attend the training from supervisorial employees to all employees. The training must be provided within six months of the employee being hired and once every two years.
3. Provides that the sexual harassment training may be done with other employees, as a group or individual, and broken up into shorter time segments as long as the two hour requirement for supervisory employees and one hour requirement for nonsupervisory employees is reached.
4. Requires that DFEH provide a method to employees who have completed the training to print out a certificate of completion, but neither they nor their employer is required to retain the certificate.
5. Requires the DFEH to develop or obtain and make available on its website one-hour and two-hour online training courses on the prevention of sexual harassment in the workplace. The training courses must contain an interactive feature which requires the worker to respond to questions periodically in order for the training courses to continue.
6. Permits an employer, in order to comply with the training requirement, to develop an alternative training module, as long as it meets specified standards.
7. Requires that an employer shall provide sexual harassment training for temporary or seasonal employees within two weeks of date of hire, if the employee will work for less than six months.
8. Requires that the sexual harassment information sheet developed by DFEH or the employer provided equivalent includes a link to the online training course developed by DFEH.
9. Requires DFEH to make the sexual harassment information sheet and the online courses available in English, Spanish, Simplified Chinese, Tagalog, Vietnamese, Korean, and any other language that is spoken by a “substantial number of non-English-speaking people,” as defined under existing law, and that DFEH must provide the translated materials on its website. Also requires that the online course be both dubbed and subtitled in the languages described above, with the exception of dubbing in English.

EXISTING LAW:

1. Prohibits employment discrimination and harassment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. (Government Code Section 12940)
2. Requires an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code Section 12940(k))
3. Requires an employer to display a poster on discrimination in employment, which includes information related to the illegality of sexual harassment, in a prominent and accessible location in the workplace. (Government Code Section 12950)
4. Requires an employer to provide employees with an information sheet developed by the DFEH or the employer on sexual harassment and must include specified information, such as a definition and description of sexual harassment, the illegality of sexual harassment, and what remedies are available to the employee. (Government Code Section 12950)
5. Requires employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment to all supervisory employees within six months of assuming supervisorial duties and then once every two years. (Government Code Section 12950.1)

FISCAL EFFECT: According to the Senate Appropriations Committee, DFEH would incur unknown costs related to (1) developing the training materials prescribed in this bill, and (2) workload changes related to the number of complaints it receives. (General Fund). The amendments would likely lower DFEH’s cost related to developing training materials relative to the previous version of this bill. Additionally, this bill would result in unknown, but potentially significant additional costs across all state departments, related to the expansion of the training to nonsupervisory employees (General Fund and special funds).

COMMENTS: According to the author, “As the nation faces the uproar against sexual harassment and assault in the workplace, both experts who study the issue and the agency that enforces laws against it say that it is women at the bottom of the labor market who suffer sexual harassment most often and are least likely to see any justice.” The author continues, “Committed leadership, accountability, and strong harassment policies and complaint systems are essential components of successful harassment prevention strategies – but only if employees are actively being informed about them.”

Background on Workplace Harassment

The 2017 Report of the Co-Chairs of the Equal Employment Opportunity Commission (EEOC) Select Task Force on the Study of Harassment in the Workplace found that workplace harassment remains a persistent problem. Almost fully one third of the approximately 90,000 charges received by EEOC in fiscal year 2015 included an allegation of workplace harassment. This includes, among other things, charges of unlawful harassment on the basis of sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and religion. According to the EEOC the harassment claims filed in fiscal year 2015:

• 45% alleged harassment on the basis of sex;

• 34% alleged harassment on the basis of race;

• 19% alleged harassment on the basis of disability;

• 15% alleged harassment on the basis of age;

• 13% alleged harassment on the basis of national origin; and

• 5% alleged harassment on the basis of religion.

The report asserted that, “Training must change. Much of the training done over the last 30 years has not worked as a prevention tool - it's been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum - it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer's most valuable resource in preventing and stopping harassment.”

Arguments in Support

California State Controller Betty Yee, sponsor of this legislation, writes, “Cultivating a cultural shift begins with all workers knowing their rights and knowing their resources. My goal is to ensure employees across every sector of our economy have easy access to a state resource to both understand what conduct constitutes harassment and where they can go for help.”

The Consumer Attorneys of California (CAOC), write in support that, “Current law requires employers with 50 or more employees to provide sexual harassment prevention training to supervisors, however, current law does little to provide training for employees generally. The recent movement to address workplace harassment has demonstrated that regular employees, rather than supervisors, are generally the catalyst for change and accountability in the workforce. Therefore, if regular employees do not know how to exercise their rights or effectively address harassment, sexual harassment will remain pervasive in the workforce.” CAOC continues, “SB 1343 is a good first step to ensure that employees are trained to recognize and address workplace sexual harassment, thereby holding employers accountable and creating safe work environments.”

Arguments in Opposition

The California Association of Winegrape Growers has an, oppose unless amended position on the bill. They request that the bill be amended to address the overlap of sexual harassment prevention training for nonsupervisory migrant and seasonal agricultural workers. They argue that “Nonsupervisory migrant and seasonal agricultural workers who work for farm labor contractors (FLCs) are currently receiving training under Section 1284 of the Labor Code.” The Winegrape Growers write that they “appreciate that SB 1343 provides that this bill shall not be construed to override or supersede statutes that meet or exceed the training required under this bill” but they are concerned that the “bill is silent on how ‘meet or exceed’ would be determined.”

Prior and Related Legislation

SB 1300 (Jackson) of 2018 would require all employees receive sexual harassment training and education; include bystander intervention training as a part of the training; and prohibit a release of claims or nondisparagement agreement between employers and employees under specified circumstances. Currently pending in the Assembly.

SB 396 (Lara) Chapter 858, Statutes of 2017 requires employers with 50 more employees include, as a part of the existing sexual harassment training, training on harassment based on gender identity and adds transgender and gender nonconforming to the list of individuals facing employment barriers for the purposes of workforce investment training.

AB 1501 (Niello) of 2007 would have deleted the two hour classroom requirement and the provision that the trainers or educators have knowledge and expertise in the prevention of harassment, discrimination, and retaliation. The bill died in the Assembly Committee on Labor and Employment.

AB 1825 (Reyes) Chapter 933, Statutes of 2004 created the sexual harassment education and training requirement for employers with 50 or more employees.

AB 2264 (Speier) Chapter 908, Statues of 1992 added Section 12950 to the Government Code, requiring: DFEH to amend its poster regarding workplace discrimination to include information on the illegality of sexual harassment; employers to put up this poster in a prominent and accessible location; and employers to distribute to each employee a DFEH information sheet on sexual harassment or equivalent content.

REGISTERED SUPPORT / OPPOSITION:

Support

Association of California Water Agencies

Betty Yee, California State Controller (sponsor)

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California Teamsters Public Affairs Council

Consumer Attorneys of California

Emtrain

Engineers and Scientist of CA, IFPTE Local 20

International Longshore & Warehouse Union

National Association of Social Workers, California Chapter

Professional and Technical Engineers, IFPTE Local 21

SAG-AFTRA

San Francisco Unified School District

The Women’s Foundation of California

UNITE-HERE Local 11

UNITE-HERE

Utility Workers of America

We Said Enough

Support If Amended

California State Association of Counties

California Special Districts Association

Association of California Healthcare Districts

Oppose Unless Amended

California Association of Winegrape Growers

Analysis Prepared by: Jennifer Richard / L. & E. /

 THIRD READING  

Bill No: SB 1343

Author:

: 5/25/18

Vote:

SENATE LABOR & IND. REL. COMMITTEE: 4-0, 4/11/18

AYES: Pan, Jackson, Mitchell, Wieckowski

NO VOTE RECORDED: Stone

SENATE JUDICIARY COMMITTEE: 7-0, 4/17/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: 6-0, 5/25/18

AYES: Lara, Bates, Beall, Bradford, Hill, Wiener

NO VOTE RECORDED: Nielsen

SUBJECT:

SOURCE: Author

DIGEST:

This bill reduces the sexual harassment training requirement threshold from employers with 50 or more employees to employers with five or more employees, include non-supervisorial employees in the training, and requires that the Department of Fair Employment and Housing develop an online training course and make it available on the Department’s Web site.

ANALYSIS:

Existing law:

1. Prohibits an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire, discriminate against, or harass the person. (Government Code §12940)
2. Prohibits explicitly an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code §12940(k))
3. Requires each employer to post a poster on discrimination in employment, which includes information relation to the illegality of sexual harassment, in a prominent and accessible location in the workplace. (Government Code §12950)
4. Requires each employer to provide his or her employees with an information sheet developed by the Department of Fair Employment and Housing (DFEH) or the employer on sexual harassment and must include specified information, such as the a definition and description of sexual harassment, how sexual harassment is illegal, and what remedies are available to the employee. (Government Code §12950)
5. Requires employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment to all supervisory employees within six months of assuming supervisorial duties and once every two years. (Government Code §12950.1)
6. Extends liability for sexual harassment education and training to any person who regularly receives 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, the state, or any political or civil subdivision of the state, and cities. (Government Code §12950.1)
7. Provides that any person or class claiming to be aggrieved may file a complaint with DFEH, but permits the hiring of private counsel to represent the aggrieved person or class once the claim has been filed. (Government Code §§12960-12962)

This bill:

1. Reduces the employment threshold for harassment training from 50 employees to five employees.
2. Expands the number of employees who are required to attend the training from supervisorial employees to all employees. The training must be provided within six months of the employee being hired and once every two years.
3. Requires that all employers must provide the sexual harassment training by January 1, 2020, but does not need to be provided again if the sexual harassment training was provided after January 1, 2019, to an employee.
4. Provides that the sexual harassment training may be done with other employees, as a group or an individual, and broken up into shorter time segments as long as the two hour requirement is reached.
5. Requires that DFEH provide a method to employees who have completed the training to print out a certificate of completion, but neither they nor their employer is required to retain the certificate.
6. Requires the DFEH to develop and make available on its Web site a two-hour online training course on the prevention of sexual harassment in the workplace. The training course must contain an interactive feature which requires the worker to respond to questions periodically in order for the training course to continue.
7. Permits an employer, in order to comply with the training requirement, to develop a two-hour training module instead of the online training course developed by DFEH.
8. Requires that an employer shall provide sexual harassment training for temporary or seasonal employees within two weeks of date of hire if the employee will work for less than six months.
9. Requires that the sexual harassment information sheet developed by DFEH or the employer on sexual harassment includes a link to the online training course developed by DFEH.
10. Requires that the DFEH makes the sexual harassment information sheet and online course available in English, Spanish, Simplified Chinese, Tagalog, Vietnamese, Korean, and any other language that is spoken by a “substantial number of non-English-speaking people,” as defined under existing law, and DFEH must provide the translated materials on its Web site. This bill also requires that the online course be both dubbed and subtitled in the languages described above, with the exception of dubbing in English.

Comments

Need for this bill? The author states the following:

The prevalence of sexual harassment in the workplace has taken center stage following the #MeToo movement. In the Legislature, we have experienced our own set of challenges to review and address issues with our policies and procedures around this issue. We established a joint-subcommittee to hear from experts and have learned that the legislature needs to focus on culture change, adopting strong policies, procedures, and training. As the co-chair of this joint-subcommittee, I am committed to ensuring that not only the Legislature begins to take steps to change our culture, but also the state as a whole. Currently, employers with less than fifty employees have no requirement to train managers, supervisors, or rank and file employees on sexual harassment prevention. Employers with fifty employees or more are only mandated to train supervisory employees every two years for a minimum of two hours. The only information provided to non- supervisory employees on the matter is through a posted notice – this is, at best insufficient.

According to the U.S. Equal Employment Opportunity Commission’s (EEOC) Select Task Force on Harassment in the Workplace, there are a series of factors that put employees at a higher risk of experiencing harassment. Some of these risk factors include: a young workforce, isolated workplaces, workplaces with significant power disparities, and workplaces that rely on customer service or client satisfaction. Women—particularly women of color—are more likely to work in environments with higher propensity of these risk factors.

Millions of California’s most vulnerable workers are not being informed of their rights and protections nor trained on how to detect work-inappropriate behaviors and how to report those behaviors. In order for an adequate culture shift to take place around this issue, all employees need to feel confident that they are adequately protected by their employers policies and procedures when it comes to safeguarding against sexual harassment. Although numerous reports state that traditional training alone is insufficient, SB 1343 takes a modest step toward a more equitable workplace, by establishing a base-standard requirement that all employees receive information and training relating to their rights and responsibilities around sexual harassment.

Related/Prior Legislation

AB 1825 (Reyes, Chapter 933, Statutes of 2004) created the sexual harassment education and training requirement for employers with 50 or more employees.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• DFEH would incur unknown costs related to (1) developing the training materials prescribed in this bill, and (2) workload changes related to the number of complaints it receives. (General Fund). The amendments would likely lower DFEH’s cost related to developing training materials relative to the previous version of this bill.
• Additionally, this bill would result in unknown, but potentially significant additional costs across all state departments, related to the expansion of the training to nonsupervisory employees (General Fund and special funds).

SUPPORT: (Verified 5/25/18)

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California Teamsters Public Affairs Council

Consumer Attorneys of California

Engineers and Scientist of CA, IFPTE Local 20, AFL-CIO

International Longshore & Warehouse Union

Professional and Technical Engineers, IFPTE Local 21, AFL-CIO

SAG-AFTRA

San Francisco Unified School District

The Women’s Foundation of California

UNITE-HERE Local 11

UNITE-HERE, AFL-CIO

Utility Workers of America

OPPOSITION: (Verified 5/30/18)

California Manufactures & Technology Association

ARGUMENTS IN SUPPORT: The Consumer Attorneys of California, writing in support of SB 1343, state the following:

Current law requires employers with 50 or more employees to provide sexual harassment prevention training to supervisors, however, current law does little to provide training for employees generally. The recent movement to address workplace harassment has demonstrated that regular employees, rather than supervisors, are generally the catalyst for change and accountability in the workforce. Therefore, if regular employees do not know how to exercise their rights or effectively address harassment, sexual harassment will remain pervasive in the workforce.

SB 1343 is a good first step to ensure that employees are trained to recognize and address workplace sexual harassment, thereby holding employers accountable and creating safe work environments.

ARGUMENTS IN OPPOSITION: The California Manufacturers and Technology Association (CMTA) take an “oppose unless amended position”, writing:

We appreciate efforts to ensure that individuals are free from harassment and discrimination in the workplace and support policies that balance workplace protections with feasibility to facilitate compliance and preserve our competitiveness. CMTA offers the following amendments to both improve the effectiveness of the program and minimize litigation exposure for manufacturers.

• Require one hour of training for non-supervisorial employees…. To facilitate increased comprehension and engagement amongst this new population of sexual harassment trainees, CMTA request that the time period for non-supervisors be reduced from two hours to one hour. This change will also minimize disruption to production schedules for essential workers.

• Clarify training can be incorporation into existing procedures…. CMTA requests language to clarify that this new training program does not have to be administered separate and outside of the existing training process.

• Establish a mechanism to confirm completion and comprehension of the online training video…. Therefore, CMTA request that a certification process be added to the bill that includes a method to verify comprehension as an employee moves through the course modules and completion once the employee has finished the video.

Prepared by:

5/30/18 9:23:43

**** END ****

 THIRD READING  

Bill No: SB 1343

Author:

: 5/25/18

Vote:

SENATE LABOR & IND. REL. COMMITTEE: 4-0, 4/11/18

AYES: Pan, Jackson, Mitchell, Wieckowski

NO VOTE RECORDED: Stone

SENATE JUDICIARY COMMITTEE: 7-0, 4/17/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: 6-0, 5/25/18

AYES: Lara, Bates, Beall, Bradford, Hill, Wiener

NO VOTE RECORDED: Nielsen

SUBJECT:

SOURCE: Author

DIGEST:

This bill reduces the sexual harassment training requirement threshold from employers with 50 or more employees to employers with five or more employees, include non-supervisorial employees in the training, and requires that the Department of Fair Employment and Housing develop an online training course and make it available on the Department’s Web site.

ANALYSIS:

Existing law:

1. Prohibits an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire, discriminate against, or harass the person. (Government Code §12940)
2. Prohibits explicitly an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code §12940(k))
3. Requires each employer to post a poster on discrimination in employment, which includes information relation to the illegality of sexual harassment, in a prominent and accessible location in the workplace. (Government Code §12950)
4. Requires each employer to provide his or her employees with an information sheet developed by the Department of Fair Employment and Housing (DFEH) or the employer on sexual harassment and must include specified information, such as the a definition and description of sexual harassment, how sexual harassment is illegal, and what remedies are available to the employee. (Government Code §12950)
5. Requires employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment to all supervisory employees within six months of assuming supervisorial duties and once every two years. (Government Code §12950.1)
6. Extends liability for sexual harassment education and training to any person who regularly receives 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, the state, or any political or civil subdivision of the state, and cities. (Government Code §12950.1)
7. Provides that any person or class claiming to be aggrieved may file a complaint with DFEH, but permits the hiring of private counsel to represent the aggrieved person or class once the claim has been filed. (Government Code §§12960-12962)

This bill:

1. Reduces the employment threshold for harassment training from 50 employees to five employees.
2. Expands the number of employees who are required to attend the training from supervisorial employees to all employees. The training must be provided within six months of the employee being hired and once every two years.
3. Requires that all employers must provide the sexual harassment training by January 1, 2020, but does not need to be provided again if the sexual harassment training was provided after January 1, 2019, to an employee.
4. Provides that the sexual harassment training may be done with other employees, as a group or an individual, and broken up into shorter time segments as long as the two hour requirement is reached.
5. Requires that DFEH provide a method to employees who have completed the training to print out a certificate of completion, but neither they nor their employer is required to retain the certificate.
6. Requires the DFEH to develop and make available on its Web site a two-hour online training course on the prevention of sexual harassment in the workplace. The training course must contain an interactive feature which requires the worker to respond to questions periodically in order for the training course to continue.
7. Permits an employer, in order to comply with the training requirement, to develop a two-hour training module instead of the online training course developed by DFEH.
8. Requires that an employer shall provide sexual harassment training for temporary or seasonal employees within two weeks of date of hire if the employee will work for less than six months.
9. Requires that the sexual harassment information sheet developed by DFEH or the employer on sexual harassment includes a link to the online training course developed by DFEH.
10. Requires that the DFEH makes the sexual harassment information sheet and online course available in English, Spanish, Simplified Chinese, Tagalog, Vietnamese, Korean, and any other language that is spoken by a “substantial number of non-English-speaking people,” as defined under existing law, and DFEH must provide the translated materials on its Web site. This bill also requires that the online course be both dubbed and subtitled in the languages described above, with the exception of dubbing in English.

Comments

Need for this bill? The author states the following:

The prevalence of sexual harassment in the workplace has taken center stage following the #MeToo movement. In the Legislature, we have experienced our own set of challenges to review and address issues with our policies and procedures around this issue. We established a joint-subcommittee to hear from experts and have learned that the legislature needs to focus on culture change, adopting strong policies, procedures, and training. As the co-chair of this joint-subcommittee, I am committed to ensuring that not only the Legislature begins to take steps to change our culture, but also the state as a whole. Currently, employers with less than fifty employees have no requirement to train managers, supervisors, or rank and file employees on sexual harassment prevention. Employers with fifty employees or more are only mandated to train supervisory employees every two years for a minimum of two hours. The only information provided to non- supervisory employees on the matter is through a posted notice – this is, at best insufficient.

According to the U.S. Equal Employment Opportunity Commission’s (EEOC) Select Task Force on Harassment in the Workplace, there are a series of factors that put employees at a higher risk of experiencing harassment. Some of these risk factors include: a young workforce, isolated workplaces, workplaces with significant power disparities, and workplaces that rely on customer service or client satisfaction. Women—particularly women of color—are more likely to work in environments with higher propensity of these risk factors.

Millions of California’s most vulnerable workers are not being informed of their rights and protections nor trained on how to detect work-inappropriate behaviors and how to report those behaviors. In order for an adequate culture shift to take place around this issue, all employees need to feel confident that they are adequately protected by their employers policies and procedures when it comes to safeguarding against sexual harassment. Although numerous reports state that traditional training alone is insufficient, SB 1343 takes a modest step toward a more equitable workplace, by establishing a base-standard requirement that all employees receive information and training relating to their rights and responsibilities around sexual harassment.

Related/Prior Legislation

AB 1825 (Reyes, Chapter 933, Statutes of 2004) created the sexual harassment education and training requirement for employers with 50 or more employees.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• DFEH would incur unknown costs related to (1) developing the training materials prescribed in this bill, and (2) workload changes related to the number of complaints it receives. (General Fund). The amendments would likely lower DFEH’s cost related to developing training materials relative to the previous version of this bill.
• Additionally, this bill would result in unknown, but potentially significant additional costs across all state departments, related to the expansion of the training to nonsupervisory employees (General Fund and special funds).

SUPPORT: (Verified 5/25/18)

California Conference Board of the Amalgamated Transit Union

California Conference of Machinists

California Teamsters Public Affairs Council

Consumer Attorneys of California

Engineers and Scientist of CA, IFPTE Local 20, AFL-CIO

International Longshore & Warehouse Union

Professional and Technical Engineers, IFPTE Local 21, AFL-CIO

SAG-AFTRA

San Francisco Unified School District

The Women’s Foundation of California

UNITE-HERE Local 11

UNITE-HERE, AFL-CIO

Utility Workers of America

OPPOSITION: (Verified 5/25/18)

Association of California Healthcare Districts

California Manufactures & Technology Association

California Special Districts Association

California State Association of Counties

ARGUMENTS IN SUPPORT: The Consumer Attorneys of California, writing in support of SB 1343, state the following:

Current law requires employers with 50 or more employees to provide sexual harassment prevention training to supervisors, however, current law does little to provide training for employees generally. The recent movement to address workplace harassment has demonstrated that regular employees, rather than supervisors, are generally the catalyst for change and accountability in the workforce. Therefore, if regular employees do not know how to exercise their rights or effectively address harassment, sexual harassment will remain pervasive in the workforce.

SB 1343 is a good first step to ensure that employees are trained to recognize and address workplace sexual harassment, thereby holding employers accountable and creating safe work environments.

ARGUMENTS IN OPPOSITION: The California Manufacturers and Technology Association (CMTA) take an “oppose unless amended position”, writing:

We appreciate efforts to ensure that individuals are free from harassment and discrimination in the workplace and support policies that balance workplace protections with feasibility to facilitate compliance and preserve our competitiveness. CMTA offers the following amendments to both improve the effectiveness of the program and minimize litigation exposure for manufacturers.

• Require one hour of training for non-supervisorial employees…. To facilitate increased comprehension and engagement amongst this new population of sexual harassment trainees, CMTA request that the time period for non-supervisors be reduced from two hours to one hour. This change will also minimize disruption to production schedules for essential workers.

• Clarify training can be incorporation into existing procedures…. CMTA requests language to clarify that this new training program does not have to be administered separate and outside of the existing training process.

• Establish a mechanism to confirm completion and comprehension of the online training video…. Therefore, CMTA request that a certification process be added to the bill that includes a method to verify comprehension as an employee moves through the course modules and completion once the employee has finished the video.

Prepared by:

5/29/18 9:08:29

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1343 (Mitchell) - Employers: sexual harassment training: requirements

Bill Summary:

SB 1343 would make several specified modifications to the State’s workplace sexual harassment prevention training requirements.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 25, 2018

Fiscal Impact:

• The Department of Fair Employment and Housing (DFEH) would incur unknown costs related to (1) developing the training materials prescribed in the bill, and (2) workload changes related to the number of complaints it receives. (General Fund). The amendments would likely lower DFEH’s cost related to developing training materials relative to the previous version of the bill.
• Additionally, the bill would result in unknown, but potentially significant additional costs across all state departments, related to the expansion of the training to nonsupervisory employees (General Fund and special funds).

Author Amendments:

Allow DFEH to obtain training program from a third party, and specify that the bill would apply to employers who hire temporary or seasonal employees.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 1343 (Mitchell) - Employers: sexual harassment training: requirements

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 1343 would make several specified modifications to the State’s workplace sexual harassment prevention training requirements.

Fiscal Impact:

• The Department of Fair Employment and Housing (DFEH) would incur unknown costs related to (1) developing the training materials prescribed in the bill, and (2) workload changes related to the number of complaints it receives. (General Fund, see Staff Comments).
• Additionally, the bill would result in unknown, but potentially significant additional costs across all state departments, related to the expansion of the training to nonsupervisory employees (General Fund and special funds).

Background:

California has required sexual harassment prevention training for supervisors at large employers for over a decade. In 2004, the State mandated that all employers with 50 or more employees conduct at least two hours of sexual harassment prevention training for all supervisory employees within six months of assuming their duties, and once every two years.

In addition to these specific mandates, employers are potentially liable under the California Fair Employment and Housing Act if they fail to take all reasonable steps to avoid harassment, discrimination, and retaliation, in their workplaces. Consequently, many employers undertake some form of sexual harassment prevention training for their employees even where it is not explicitly required by current law.

Proposed Law:

This bill would, among other things, do the following:

• Reduce the employment threshold for harassment training from 50 employees to five employees.
• Expand the number of employees who are required to attend the training from supervisorial employees to all employees. The training must be provided within six months of the employee being hired and once every 2 years.
• Require that employers must provide the sexual harassment training by January 1, 2020, but it does not need to be provided again if the sexual harassment training was provided after January 1, 2019 to an employee.
• Require DFEH to (1) develop and make available on its website a two-hour video training course on the prevention of sexual harassment in the workplace, and (2) post it so that it available for streaming or downloading on the department’s Internet Web site.
• Require DFEH to provide existing informational posters and fact sheets, as well as the Internet training videos regarding sexual harassment prevention, available to employers and to members of the public, in specified alternate languages, on the department’s Internet Web site.
• Permit an employer, in order to comply with the training requirement, to develop a two-hour training module as an alternative to that developed by DFEH.
• Require that the sexual harassment information sheet developed by DFEH or the employer on sexual harassment includes a link to, or internet address for, the online video training materials developed by DFEH.

Related Legislation:

• SB 1300 (Jackson, 2018) would, among other things, (1) expand the pool of employers required to provide sexual harassment prevention training from all those with 50 or more employees, to all those with five or more employees, (2) require such training for all employees, not just supervisors. The bill is currently pending in this Committee.
• AB 1825 (Reyes, Chapter 933, Statutes of 2004) created the sexual harassment education and training requirement for employers with 50 or more employees.

Staff Comments:

DFEH’s cost to implement the bill is unknown at this time, and would be driven by several factors. First, the department notes that, under the bill, more employees would be better trained with respect to sexual harassment prevention. Some of these employees with a subsequently improved understanding of their rights could file complaints, which would drive up DFEH’s investigatory workload relative to what is otherwise would have been. On the other hand, because more employees would have received prevention training, there would be a greater understanding of what constitutes harassing behavior, resulting in less sexual harassment, and fewer cases for DFEH to investigate. The extent to which one of these factors would overwhelm the other is uncertain, but would determine the magnitude and direction of any change in DFEH’s investigatory workload. Second, DFEH notes that it already translates currently-produced materials into multiple languages; however, any changes to those materials would require further translations. Finally, the scope (and resulting cost) of the bill’s requirement related to the department’s training video is unclear. For instance, the video could be produced rather cheaply (e.g., using screen shots), or be a more professionally- produced live-action video (which would be commensurately more expensive). Likewise, additions such as having the training be interactive would impact production costs.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 1343 (Author:Mitchell)

Version: February 16, 2018

Hearing Date: April 17, 2018

Fiscal: Yes

Urgency: No

Consultant: TSG

SUBJECT

Employers: sexual harassment training: requirements

DESCRIPTION

This bill would make several modifications to California’s workplace sexual harassment prevention training requirements intended to increase their deterrent effect. Specifically, the bill would expand the reach of workplace sexual harassment prevention training requirements to include all employees (not just supervisory employees) and all workplaces with more than five employees (not just those with more than 50 employees). In addition, the bill would direct the Department of Fair Employment and Housing to develop a two hour video training course on workplace sexual harassment prevention, to be hosted on its Web site and made available to all California employers. Finally, the bill would require the department to make its workplace sexual harassment poster, information sheet, and training video available in at least three “alternate” languages.

BACKGROUND

Ignited by victims speaking out publicly about their experiences and fueled by online movements like “MeToo,” and “WeSaidEnough,” accounts of workplace sexual harassment have swept across the United States (and the globe) over the past year. In response, victims, advocates, and policymakers have offered up a variety of proposals intended to address the ongoing problem. One area of attention has been workplace sexual harassment prevention training.

California has required sexual harassment prevention training for supervisors at large employers for over a decade. In 2004, California enacted AB 1825 (AB 1825, Reyes, Ch. 933, Stats. 2004) mandating that all employers with 50 or more employees conduct two hours of sexual harassment prevention training for all supervisory employees. (Gov. Code Sec. 12950.1.)

In addition to these specific mandates, California’s Fair Employment and Housing Act exposes employers to potential liability if they fail to take all reasonable steps to avoid harassment, discrimination, and retaliation, in their workplaces. (Gov. Code 12940(k).) As a result, many employers undertake some form of sexual harassment prevention training for their employees even where it is not explicitly required by law.

The use of these kinds of sexual harassment prevention trainings may have helped address the problem to some degree. Nonetheless, the revelations of the past year demonstrate that significant levels of sexual harassment and violence have persisted in spite of these prevention training programs. That has led to a re-examination of the format and content of these trainings with an eye toward making them more effective. It has also focused attention on the gaps in training coverage.

This bill would attempt to improve the quality of sexual harassment prevention training and expand the number of workers that receive it through three elements. First, the bill would extend the existing workplace sexual harassment prevention training requirement to all employees working for employers that have five or more employees or that receive services from five or more independent contractors. Second, the bill would direct the Department of Fair Employment and Housing to develop and post on its Web site a two hour, interactive video training course on the prevention of sexual harassment in the workplace that would satisfy the minimum training requirement. Third, the bill would require DFEH to provide its poster with information about the illegality of discrimination and sexual harassment, its sexual harassment information sheet, and its sexual harassment prevention video training course to any employer upon request and to make them available in at least three alternate languages.

CHANGES TO EXISTING LAW

Existing law, in the form of the California Fair Employment and Housing Act (FEHA), prohibits an employer or any other person to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. (Gov. Code Sec. 12940(j)(1).)

Existing law defines an “employer,” for most purposes of the Fair Employment and Housing Act, as including any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, but not a non-profit religious association or corporation. (Gov. Code Sec. 12926(d).)

Existing law defines an “employer,” for purposes of liability for workplace harassment only, as meaning any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities, but not a non-profit religious association or corporation. (Gov. Code Sec. 12940(j)(4)(A) and (B).)

Existing law requires the Department of Fair Employment and Housing to produce a poster with information regarding the illegality of discrimination and sexual harassment, make it available online, and to provide one copy of it by mail to each employer who so requests, so long as the employer provides a self-addressed envelope with postage affixed for that purpose. (Gov. Code Sec. 12950(a)(1).)

Existing law obligates employers to put up the DFEH’s poster with information about the illegality of discrimination and harassment, as well as DFEH’s poster regarding transgender rights, in a prominent and accessible place in the workplace. (Gov. Code Sec. 12950(a)(1) and (2).

Existing law requires DFEH to make an information sheet on sexual harassment available online, and to provide one copy of it by mail to each employer who so requests, so long as the employer provides a self-addressed envelope with postage affixed for that purpose. (Gov. Code Sec. 12950(a)(1).)

Existing law obligates employers to obtain the information sheet on sexual harassment from DFEH and ensure distribution of it to its employees, unless the employer provides equivalent information to its employees, including specified components detailing what sexual harassment is, that it is illegal, and internal as well as external complaint procedures. (Gov. Code Sec. 12950(b) and (c).)

Existing law requires an employer having 50 or more employees or receiving the services of 50 or more independent contractors, to provide at least two hours of classroom or other effective interactive training regarding sexual harassment prevention, including applicable laws and examples, to all supervisory employees in California within six months after becoming a supervisor and once every two years. The trainings must be given by people with knowledge and expertise in the prevention of harassment, discrimination, and retaliation. (Gov. Code Sec. 12950.1(a) and (h)(1).)

Existing law mandates the inclusion of prevention of abusive conduct, as defined, and of harassment based on gender identity, gender expression and sexual orientation as components of the required sexual harassment prevention training. (Gov. Code Sec. 12950.1(b) and (c).)

Existing law requires the state to incorporate two hours of sexual harassment prevention training into the required 80 hour training for all new state supervisorial employees. (Gov. Code Sec. 12950.1(d).)

This bill would require all employers with five or more employees, or receiving the services of five or more independent contractors, to provide two hours of sexual harassment prevention training to all employees by January 1, 2020, and once every two years after that.

This bill would direct DFEH to develop and make available on its Web site a two hour, interactive video training course on the prevention of sexual harassment in the workplace that conforms with existing law regarding content.

This bill would give employers discretion to meet the two hour sexual harassment prevention training requirement by directing employees to view the DFEH video training course mandated by this bill or developing their own two hour training module.

This bill would require employers to include a link to DFEH’s training video course on sexual harassment prevention among the information it distributes to employees regarding sexual harassment.

This bill would require DFEH to provide its poster on the illegality of discrimination and sexual harassment, its information sheet regarding sexual harassment, and its two hour video training course on sexual harassment prevention available to any employer upon request, and to make them available in at least three alternate languages.

COMMENT

1. Stated need for the bill

According to the author:

The prevalence of sexual harassment in the workplace has taken center stage following the #MeToo movement. In the Legislature, we have experienced our own set of challenges to review and address issues with our policies and procedures around this issue. We established a joint-subcommittee to hear from experts and have learned that the legislature needs to focus on culture change, adopting strong policies, procedures, and training. As the co-chair of this joint-subcommittee, I am committed to ensuring that not only the legislature begin to take steps to change our culture, but also the state as a whole. Currently, employers with less than fifty employees have no requirement to train managers, supervisors, or rank and file employees on sexual harassment prevention. Employers with fifty employees or more are only mandated to train supervisory employees every two years for a minimum of two hours. The only information provided to non-supervisory employees on the matter is through a posted notice – this is, at best insufficient.

According to the U.S. Equal Employment Opportunity Commission’s (EEOC) Select Task Force on Harassment in the Workplace, there are a series of factors that put employees at a higher risk of experiencing harassment. Some of these risk factors include: a young workforce, isolated workplaces, workplaces with significant power disparities, and workplaces that rely on customer service or client satisfaction. Women—particularly women of color—are more likely to work in environments with higher propensity of these risk factors.

Millions of California’s most vulnerable workers are not being informed of their rights and protections nor trained on how to detect work-inappropriate behaviors and how to report those behaviors. In order for an adequate culture shift to take place around this issue, all employees need to feel confident that they are adequately protected by their employers policies and procedures when it comes to safeguarding against sexual harassment. Although numerous reports state that traditional training alone is insufficient, SB 1343 takes a modest step toward a more equitable workplace, by establishing a base-standard requirement that all employees receive information and training relating to their rights and responsibilities around sexual harassment.

As sponsor of the bill, California State Controller Betty Yee writes:

Cultivating a cultural shift begins with all workers knowing their rights and knowing their resources. My goal is to ensure employees across every sector of our economy have easy access to a state resource to both understand what conduct constitutes harassment and where they can go for help.

In support, the California Asian Pacific Chamber of Commerce writes:

CalAsian Chamber recognizes that sexual harassment in the workplace requires a cultural shift, and the business community can play an influential role in leading the way on this important issue. Sexual harassment and abusive conduct create a toxic work environment, threatening not only the personal well-being of workers but also the economic well-being of companies and the government through job turnover, sick leave, and reduced workplace productivity.

Through this sexual harassment training and education, employees will gain access to additional information on discrimination in employment with the inclusion of information relating to the illegality of sexual harassment. This includes access to this information in multiple languages.

2. Concerns expressed about the bill

In opposition to the bill, unless amended, the California Manufacturers & Technology Association writes:

We appreciate efforts to ensure that individuals are free from harassment and discrimination in the workplace and support policies that balance workplace protections with feasibility to facilitate compliance and preserve our competitiveness. CMTA offers the following amendments to both improve the effectiveness of the program and minimize litigation exposure for manufacturers.

• Require one hour of training for non-supervisorial employees. […] [B]ecause non-supervisorial employees are not responsible for the implementation and oversight of a manufacturer’s sexual harassment prevention program, imposing the same two hour requirement seems excessive. […]
• Clarify training can be incorporation [sic] into existing procedures. […] [I]nstruction as to how this new training can be incorporated into [manufacturer’s] existing training procedures would provide clarity necessary to facilitate compliance. […]
• Establish a mechanism to confirm completion and comprehension of the online training video. […] [W]e have concerns that manufacturers who utilize this option will not have a way to confirm whether employees fully completed the instruction or comprehend the content.[…]

In support of the bill, if amended, the Association of California Healthcare Districts, the California State Association of Counties, and the California Special Districts Association write:

We believe [SB 1343] to be a reasonable and thoughtful approach to ensure greater training opportunities with the goal of reducing incidents and improving workplace environments. The inclusion of an online training that can meet the necessary parameters is especially helpful in preserving local agency resources. It will make a significant difference for positions that are not on 5/40 work schedules, are stationed in remote areas or have travel-intensive duties, or in geographically-large counties or special districts where in-person trainings are logistically very challenging.

We respectfully offer the following suggestions for consideration and look forward to an ongoing dialogue […]

1. Proof of Training Completion: Local government employers would benefits greatly by receiving a proof of completion certificate or statement […]
2. Reducing Time Away from Duties: […] We believe reducing non-supervisorial position trainings from the proposed two hours to just one hour is appropriate since non-supervisorial positions will have less complex content with fewer legal obligations and associated employer liability.
3. Seasonal and Temporary Positions: […] We believe some consideration should be given for seasonal or temporary employees in light of the large mandated training expansion.
4. Preserving Locally Adopted Training Schedule: […] [M]any local agencies have implemented their own training schedule for additional employee groups beyond supervisors and managers. […] We believe those local programs should be preserved for public agencies and allowed to stand in place of the proposed statewide standards offered in SB 1343. […]

3. Expanded obligations and assistance for smaller employers

Under existing law, only large employers – those employing 50 or more employees or receiving the services of 50 or more independent contractors – are subject to the requirement to provide two hours of training to their supervisors. This bill would expand that mandate in two ways. First, it would require many smaller employers, down to those with five or more employees or receiving the services of five or more independent contractors. Second, it would require the covered employers to provide the training to all employees, not just supervisors.

Ordinarily, putting on a two hour sexual harassment prevention training session would be quite costly for a small employer. By directing DFEH to develop a free, online video training course which meets the requirements of the mandate, the bill would appear to mitigate a significant element of the financial impact.

4. Broadening the focus and function of sexual harassment prevention training

All workers can be victims of sexual harassment. All workers can perpetrate sexual harassment. Despite this, the current California sexual harassment prevention training requirements focus exclusively on supervisory employees (with the exception of training requirements applicable only to the janitorial and farm labor sectors as discussed in Comment 6, below).

Viewed positively, that narrow focus on supervisors appropriately targets the employees that wield the most influence over the workplace while keeping the training requirement more manageable and making it less costly than it would be to train all workers. Yet it can also be criticized for the obvious reason that it deprives all of the remaining workers of the opportunity to better understand their duties, rights, and remedies in regard to sexual harassment.

Viewed more cynically, limiting the training to supervisors can be seen as designed not so much to maximize the prevention of sexual harassment as to minimize employers’ exposure to liability. In the context of sexual harassment, supervisors represent a liability hazard for employers primarily because, if they engage in workplace sexual harassment or fail to respond appropriately to reports of sexual harassment by their subordinates, the employer is strictly liable for it. Employers, therefore, benefit if supervisors are well-informed about their duties with regard to sexual harassment. All other, non-supervisorial workers represent a liability hazard for employers not just as potential harassers, but also as potential sexual harassment plaintiffs. As a result, from the perspective of employer liability, there is as much danger as there is benefit to a rank and file workforce that understands its rights and remedies with respect to sexual harassment.

By extending the training requirements to all workers, this bill would ensure that all employees are aware of their rights, responsibilities, and remedies with respect to sexual harassment. In the process, the bill arguably shifts the focus of California’s sexual harassment prevention training regime to deterring and addressing workplace sexual harassment overall.

5. Comparison to liability for incidents of sexual harassment

Under existing law, while only employers with 50 or more employees (or receiving the services of 50 or more independent contractors) are required to provide sexual harassment prevention training, all California employers, regardless of how many employees or independent contractors they have, can be held liable for workplace sexual harassment. (Gov. Code Sec. 12940(j)(4)(a).) Similarly, while existing law only requires sexual harassment prevention training for supervisors (with exceptions in the farm labor and janitorial sectors, discussed below), individual employees can be held personally liable for workplace sexual harassment, whether they are a supervisor or not, and whether or not the employer is aware of the harassment. (Gov. Code Sec. 12940(j)(3).) This means that, under existing law, there is a substantial disparity between who must be trained on sexual harassment prevention and who may be held liable for it. The discrepancy means that not necessarily all those who could get sued for sexual harassment get the benefit of training that would forewarn them of the legal danger, thereby perhaps deterring the behavior, and avoiding the liability.

While this bill would not bring the training requirement into perfect alignment with the potential for liability, it would go most of the way toward closing the gap. Since, if this bill were enacted, all employees and all but the very smallest employers would be covered by the training requirement, nearly everyone who is potentially subject to liability for sexual harassment would receive training describing their rights, responsibilities, and the potential consequences if they engage in unwelcome conduct of a sexual nature in the workplace.

6. Industry-specific sexual harassment prevention training mandates as precedent

In recent years, the State has adopted legislation that imposes sexual harassment prevention training requirements for certain industries in which sexual harassment and violence has been especially well-documented and problematic. As this bill proposes to do for all industries, these industry-specific bills included a training requirement for all employees, not just supervisors.

In 2014, Senator Monning’s bill, SB 1087 (Ch. 750, Stats. 2014), made it mandatory for farm labor contractors to provide at least two hours of sexual harassment prevention training annually to their supervisory employees and at least an hour of sexual harassment prevention training to all other employees. (Lab. Code Sec. 1684(a)(8).) After a study documented spotty compliance, Senator Monning followed up last year with SB 295 (Ch. 424, Stats. 2017) in order to beef up enforcement. (Lab. Code Sec. 1697.5.) In the janitorial sector, Assemblymember Gonzalez-Fletcher’s 2016 bill, AB 1978 (Ch. 373, Stats. 2016), mandated development of biennial, in-person sexual harassment prevention training for all employees. (Lab. Code Secs. 1420-1434.) That program is just coming online now.

7. DFEH’s obligation to distribute materials

Existing law requires DFEH to provide “one copy” of the poster or fact sheet to employers who so request, provided that the employer provides DFEH with a self-addressed envelope with postage affixed to it. (Gov. Code Sec. 12950(a)(1) and (b).) The bill in print, in contrast, states that DFEH shall provide “these materials” to an employer “upon request.” That the two provisions are different could potentially lead to confusion about DFEH’s obligations with regard to distributing the materials. How many copies of each type of material is an employer entitled to request from DFEH? Must the employer provide the preaddressed envelope with postage, or does DFEH have to provide the materials “upon request” regardless?

The author may wish to amend the bill to make these provisions internally consistent and to set a limit on the number of copies of materials that any given employer can request. At the same time, since the materials are as much intended to educate members of the public about their rights as they are to meet employers’ obligations under the law, the author may wish to amend the bill to indicate that members of the public, in addition to employers, may request the materials.

8. Clarifying language access provisions

The bill in print seeks to ensure that California employees with limited proficiency in the English language still have access to information about their rights with respect to workplace sexual harassment. To accomplish that goal, the bill provides that the DFEH shall make its sexual harassment prevention poster, information sheet, and training video available in “at least three alternate languages.” While the intent to provide language access is evident from the phrase used, it is not clear what specific languages DFEH must translate the materials into.

Under the Dymally-Alatorre Bilingual Services Act (Gov. Code Sec. 7290 - 7299.8), California state agencies, such as the DFEH, that serve a “substantial number” of non-English speaking people, are required to provide translations of any documents that explain the agency’s services, though such translations need not be verbatim. (Gov. Code Sec. 7295.2.) The Act defines “substantial number” as greater than five percent of the population that the agency serves. (Gov. Code Sec. 7296.2.)

To make DFEH’s language access obligations under this bill clearer the author may wish to amend the bill to provide that the required materials must be available in English, Spanish, Simplified Chinese, Korean, Tagalog, Vietnamese, and any other language that is spoken by a “substantial number” of non-English proficient Californians, as that phrase is defined in Government Code Section 7296.2.

9. Proposed Amendments

In order to address the issues set forth in the analysis, above, the author has offered to incorporate amendments into the bill that would:

• clarify the language access component of the bill to specify the languages in which DFEH must make the sexual harassment prevention materials available; and
• ensure internal consistency within the bill regarding DFEH’s obligation to distribute its workplace sexual harassment poster, fact sheet, and training video to employers that request them.

The specific amendments are as follows:

Amendment 1

On page 2, in line 8, strike “department shall amend its current” and insert:

department’s

Amendment 2

On page 2, in line 9, strike the first “to” and insert:

shall

Amendment 3

On page 2, in line 10, strike “This amended poster shall be”

Amendment 4

On page 2, strike line 11

Amendment 5

On page 2, in line 12, strike “exhausted”

Amendment 6

On page 2, in line 12, strike “amended”

Amendment 7

On page 2, in line 13, after “employer” insert:

or a member of the public

Amendment 8

On page 2, in line 13, strike “amended”

Amendment 9

On page 2, in line 16, strike “Multiple copies of the amended poster shall be”

Amendment 10

On page 2, strike line 17

Amendment 11

On page 2, in line 18, strike “Housing.”

Amendment 12

On page 2, in line 29, after “employer” insert:

or a member of the public

Amendment 13

On page 2, in line 32, strike “Multiple copies of the information sheet shall be”

Amendment 14

On page 2, strike line 33

Amendment 15

On page 2, in line 34, strike “Housing.”

Amendment 16

On page 3, in line 14, strike out “to” and insert:

to, or the Internet Web site address for,

Amendment 17

On page 3, in line 23, strike “these materials” and insert:

the poster, fact sheet, and training video

Amendment 18

On page 3, in line 23, strike “at least three alternate languages” and insert:

English, Spanish, Mandarin, Tagalog, Vietnamese, Korean, and any other language that is spoken by a “substantial number” of non-English proficient Californians, as that phrase is defined in Government Code Section 7296.2. The department shall make versions of the training video with subtitles in each language and shall orally dub the video into each language other than English. Simplified Chinese shall be sufficient for subtitling purposes.

Amendment 19

On page 3, in line 25, insert:

(e) The department shall make the poster, fact sheet, and training video required by this section, and the corresponding translations, available to employers and the public through its Internet Web site in formats that may be streamed or downloaded.

Amendment 20

On page 3, in line 26, strike “(e)” and insert:

(f)

Amendment 21

On page 3, in line 36, strike “(f)” and insert:

(g)

Support: California Asian Pacific Islander Chamber of Commerce; California Teamsters Public Affairs Council; Consumer Attorneys of California; San Francisco Unified School District; UniteHere! Local 11; the Women’s Foundation of California

Opposition: California Manufacturers & Technology Association

HISTORY

Source: California State Controller Betty Yee

Related Pending Legislation:

SB 1223 (Galgiani, 2018) would direct the California Department of Industrial Relations to develop a harassment and discrimination prevention policy and training standard for use by employers in the construction industry. SB 1223 is pending consideration before the Senate Committee on Labor and Industrial Relations.

SB 1300 (Jackson, 2018) would, among other proposed changes to the Fair Employment and Housing Act and like this bill, expand the pool of employers required to provide sexual harassment prevention training from all those with 50 or more employees, to all those with five or more employees. Also like this bill, SB 1300 would require such training for all employees, not just supervisors. SB 1300’s sexual harassment prevention training provisions diverge from this bill in that SB 1300 requires employers to include a bystander intervention element; SB 1300 does not direct DFEH to produce a training video; and SB 1300 does not address translation of the DFEH’s sexual harassment information poster and fact sheet into languages other than English. SB 1300 is currently pending consideration before the Senate Committee on Judiciary.

Prior Legislation:

SB 396 (Lara, Stats. 2017, Ch. 858) required employers with five or more employees to put up a DFEH poster regarding transgender rights and mandated that employers with 50 or more employees include a component regarding harassment based on gender identity, gender expression, and sexual orientation in their sexual harassment prevention training.

AB 2053 (Gonzalez, Stats. 2014, Ch. 306) required the inclusion of a component in the two hour training on prevention of “abusive conduct,” defined as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”

AB 1501 (Niello, 2007) would have deleted the two hour classroom requirement and the provision that the trainers or educators have knowledge and expertise in the prevention of harassment, discrimination, and retaliation. AB 1501 died in the Assembly Committee on Labor and Employment.

AB 1825 (Reyes, Stats. 2004, Ch. 933) added Section 12950.1 to the Government Code, mandating that all employers with 50 or more employees conduct two hours of sexual harassment prevention training for all supervisory employees.

AB 2264 (Speier, Stats. 1992, Ch. 908) added Section 12950 to the Government Code, requiring: DFEH to amend its poster regarding workplace discrimination to include information on the illegality of sexual harassment; employers to put up this poster in a prominent and accessible location; and employers to distribute to each employee a DFEH information sheet on sexual harassment or equivalent content.

Prior Vote: Senate Labor and Industrial Relations Committee (Ayes 4, Noes 0)

**************

SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS

Senator Richard Pan, Chair

2017 - 2018 Regular

Bill No: SB 1343 Hearing Date: April 11, 2018

Subject: Employers: sexual harassment training: requirements

KEY ISSUE

Should the Legislature reduce the sexual harassment training requirement threshold from employers with 50 or more employees to employers with 5 or more employees, include non-supervisorial employees in the training, and require that the Department of Fair Employment and Housing develop the training course and make it available on the Department’s website?

ANALYSIS

Existing law:

1. Prohibits an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire, discriminate against, or harass the person. (Government Code §12940)
2. Explicitly prohibits an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code §12940(k))
3. Requires each employer to post a poster on discrimination in employment, which includes information relation to the illegality of sexual harassment, in a prominent and accessible location in the workplace. (Government Code §12950)
4. Requires each employer to provide his or her employees with an information sheet developed by the Department of Fair Employment and Housing (DFEH) or the employer on sexual harassment and must include specified information, such as the a definition and description of sexual harassment, how sexual harassment is illegal, and what remedies are available to the employee. (Government Code §12950)
5. Requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of assuming supervisorial duties and once every 2 years.

(Government Code §12950.1)

1. Extends liability for sexual harassment education and training to any person who regularly receives 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, the state, or any political or civil subdivision of the state, and cities. (Government Code §12950.1)
2. Provides that any person or class claiming to be aggrieved may file a complaint with the Department of Fair Employment and Housing (DFEH), but permits the hiring of private counsel to represent the aggrieved person or class once the claim has been filed.

(Government Code §§12960-12962)

This bill:

1. Reduces the employment threshold for harassment training from 50 employees to 5 employees.
2. Expands the number of employees who are required to attend the training from supervisorial employees to all employees. The training must be provided within 6 months of the employee being hired and once every 2 years.
3. Requires that all employers must provide the sexual harassment training by January 1, 2020, but does not need to be provided again if the sexual harassment training was provided after January 1, 2019 to an employee.
4. Requires the DFEH to develop and make available on its website a two-hour video training course on the prevention of sexual harassment in the workplace.
5. Permits an employer, in order to comply with the training requirement, to develop a two-hour training module instead of the training course developed by DFEH.
6. Requires that the sexual harassment information sheet developed by DFEH or the employer on sexual harassment includes a link to the online video training materials developed by DFEH.
7. Requires that the DFEH makes the sexual harassment information sheet available in at least three different languages and provide the translated materials at the request of the employer.

COMMENTS

1. Need for this bill?

The author states the following:

“The prevalence of sexual harassment in the workplace has taken center stage following the #MeToo movement. In the Legislature, we have experienced our own set of challenges to review and address issues with our policies and procedures around this issue. We established a joint-subcommittee to hear from experts and have learned that the legislature needs to focus on culture change, adopting strong policies, procedures, and training. As the co-chair of this joint-subcommittee, I am committed to ensuring that not only the legislature begin to take steps to change our culture, but also the state as a whole. Currently, employers with less than fifty employees have no requirement to train managers, supervisors, or rank and file employees on sexual harassment prevention. Employers with fifty employees or more are only mandated to train supervisory employees every two years for a minimum of two hours. The only information provided to non- supervisory employees on the matter is through a posted notice – this is, at best insufficient.

According to the U.S. Equal Employment Opportunity Commission’s (EEOC) Select Task Force on Harassment in the Workplace, there are a series of factors that put employees at a higher risk of experiencing harassment. Some of these risk factors include: a young workforce, isolated workplaces, workplaces with significant power disparities, and workplaces that rely on customer service or client satisfaction. Women—particularly women of color—are more likely to work in environments with higher propensity of these risk factors.

Millions of California’s most vulnerable workers are not being informed of their rights and protections nor trained on how to detect work-inappropriate behaviors and how to report those behaviors. In order for an adequate culture shift to take place around this issue, all employees need to feel confident that they are adequately protected by their employers policies and procedures when it comes to safeguarding against sexual harassment. Although numerous reports state that traditional training alone is insufficient, SB 1343 takes a modest step toward a more equitable workplace, by establishing a base-standard requirement that all employees receive information and training relating to their rights and responsibilities around sexual harassment.”

2. Staff Comments:

A Brief Word on the Sexual Harassment Training Requirements under SB 1343

As noted above, SB 1343 expands the training threshold requirement from 50 employees to 5 employees and includes all non-supervisorial employees. This is a significant expansion of the number of employees covered, but the exact scale of the expansion is unknown. Additionally, SB 1343 provides a clear path for compliance for businesses of any size: they can use the video training course created by DFEH or develop their own training comparable course that meets their needs.

There is, however, an internal tension within SB 1343: while the bill allows for the use of a video training course, the existing statute that SB 1343 calls for an interactive sexual harassment training and educational program. While a video training program can be interactive and extremely educational, and existing state training videos are available, the author may wish to consider either empowering DFEH to develop a list of training vendors who have a video training module which complies with the training requirement or going into greater detail on what an interactive video training course would entail.

Finally, under current law, non-profit corporations are exempted from FEHA. The author may wish to consider if it would be appropriate to include non-profit corporations in the sexual harassment training. This would ensure that the employees of non-profits are not excluded from the benefits of sexual harassment training and education.

3. Double Referral:

This bill has been double referred and, if approved by this committee, it will be sent to the Senate Judiciary Committee for hearing.

4. Proponent Arguments:

The Consumer Attorneys of California (CAOC), writing in support of SB 1343, state the following:

“Current law requires employers with 50 or more employees to provide sexual harassment prevention training to supervisors, however, current law does little to provide training for employees generally. The recent movement to address workplace harassment has demonstrated that regular employees, rather than supervisors, are generally the catalyst for change and accountability in the workforce. Therefore, if regular employees do not know how to exercise their rights or effectively address harassment, sexual harassment will remain pervasive in the workforce.

SB 1343 is a good first step to ensure that employees are trained to recognize and address workplace sexual harassment, thereby holding employers accountable and creating safe work environments.”

5. Opponent Arguments:

The California Manufacturers and Technology Association (CMTA) take an “oppose unless amended position”, writing:

We appreciate efforts to ensure that individuals are free from harassment and discrimination in the workplace and support policies that balance workplace protections with feasibility to facilitate compliance and preserve our competitiveness. CMTA offers the following amendments to both improve the effectiveness of the program and minimize litigation exposure for manufacturers.

• Require one hour of training for non-supervisorial employees…. To facilitate increased comprehension and engagement amongst this new population of sexual harassment trainees, CMTA request that the time period for non-supervisors be reduced from two hours to one hour. This change will also minimize disruption to production schedules for essential workers.

• Clarify training can be incorporation into existing procedures…. CMTA requests language to clarify that this new training program does not have to be administered separate and outside of the existing training process.

• Establish a mechanism to confirm completion and comprehension of the online training video…. Therefore, CMTA request that a certification process be added to the bill that includes a method to verify comprehension as an employee moves through the course modules and completion once the employee has finished the video.”

6. Prior Legislation:

AB 1825 (Reyes), Chapter 933, Statutes of 2004, creates the sexual harassment education and training requirement for employers with 50 or more employees.

SUPPORT

CA Conference Board of the Amalgamated Transit Union

CA Conference of Machinists

California Teamsters Public Affairs Council

Consumer Attorneys of California

Engineers and Scientist of CA, IFPTE Local 20, AFL-CIO

International Longshore & Warehouse Union

Professional and Technical Engineers, IFPTE Local 21, AFL-CIO

San Francisco Unified School District

SAG-AFTRA

The Women’s Foundation of California

UNITE-HERE Local 11

UNITE-HERE, AFL-CIO

Utility Workers of America

Association of California Healthcare Districts (if amended)

California Special Districts Association (if amended)

California State Association of Counties (if amended)

OPPOSITION

California Manufactures & Technology Association (unless amended)

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