Which of these is considered sexual harassment in the workplace?

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A. Giving someone excessive attention, even if it is not in a sexual way

B. Telling an off-color joke

C. Checking someone out

D. Sincerely asking about someone’s sexual orientation

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If you answered “none of them” you would be wrong. If you answered “all of them” you would be correct.

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Because it is often difficult for people to know what constitutes abusive conduct and “where the line is,” California state law has mandated that all employers with five or more employees provide their staff with sexual harassment training. Here is everything you need to know about these gov mandated training requirements.

What is Sexual Harassment?

Title VII of the federal Civil Right Act of 1964 forbids sexual harassment in the workplace. But, just what is "sexual harassment"? According to the California Chamber of Commerce:

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“Sexual harassment is a form of unlawful workplace harassment based upon a person’s sex, sexual orientation, gender identity, or gender expression that may be verbal, visual, or physical.”

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Additionally, the chamber points out that there are two specific types of sexual harassment:

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• ‍Hostile Work Environment harassment refers to “unwelcome comments or conduct based on sex.” Such words or conduct rise to this level if they “unreasonably interfere with an employee’s work performance.” 
• ‍Quid Pro Quo sexual harassment occurs when a “job or promotion is explicitly or implicitly conditioned on an applicant or employee’s submission to sexual advances or other conduct based on sex.”

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While the definitions seem clear enough, the fact is, many employers and employees do not know what is and what is not acceptable behavior. Hence the requirement for sexual harassment training seminars.

Who is Required to Get the Training?

Pursuant to California employment law, all employers with five or more employees must provide the training. This includes:

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Supervisory employees: Understandably, under the law, employees in a supervisory position require more training than standard employees. Specifically, any employee who supervises another employee must receive two hours of sexual harassment prevention training and education every two years. Employees promoted to a supervisory role must complete their two-hour training within six months of that promotion.

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Nonsupervisory employees: Such employees must receive one hour of training every two years. California law further mandates that said training occur within six months of hire.

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Temporary employees and seasonal employees: If an employee is hired to work for less than six months, he or she still must get the hour training–within 30 days of being hired or 100 hours worked, whichever occurs first. This includes interns, as well as migrant and seasonal agricultural workers.

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What, you might be asking, about independent contractors, volunteers, freelancers and unpaid interns? No, these folks do not fall under the law and need not be trained. That said, oddly, they do count as far as the number of employees you have with regard to the “five or more must be trained” rule.

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Here’s an example: You have three full-time employees and three unpaid interns. In this case, you would have to offer the training because the number of people working with you is more than five, but, that said, only the three full-time staffers would be required to receive the training.

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Note that employees working for California employers that don’t work in California are exempt from sexual harassment training requirements.

Sexual Harassment Prevention Training Requirements

The law under the California Department of Fair Employment and Housing (DFEH) is fairly flexible when it comes to the type of training an employer can offer, as long as it is “effective interactive training” that helps employees understand California Sexual Harassment laws and requirements. 

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This means, for example, that under the Fair Employment and Housing Act (FEHA), the sexual harassment trainings can be done individually or in a group setting, or that they can be completed all at once or broken up and conducted in shorter segments. As such, your company's Human Resources department can offer the trainings via various modalities:

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Classroom training: Classroom training courses work as long as the training is outside of an employee’s normal daily routine and duties, is done in-person, and the material is provided by a trained trainer.

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Computer training: E-learning and online training is also acceptable, again as long as it is interactive and is created by a trainer. Additionally, for these online training courses to count, the trainer must give the employer and participant instructions and/or links for how to contact or otherwise ask questions of the trainer. The trainer, in turn, must answer these questions within two business days.

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Webinars: Webinars are all the rage these days especially given the pandemic. Webinar training is therefore also acceptable to meet prevention training requirements, but with the same caveats–that the training be created by the trainer and that participants are able to ask questions and get answers.

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Other: Other “effective interactive training” can include use of audio, video, mobile devices, or computers done in conjunction with classroom, webinar, and/or e-learning. 

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Please note two addendums:

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1. The employer cannot charge their employee for these trainings as the law mandates that the employer “shall provide” the trainings.
2. Another thing you cannot do is make the employee do the training on their own time; that is, all training must be offered during paid work hours. In fact, you cannot even make the employee do the training during his or her breaks. During work hours means just that.

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There are all sorts of training companies out there that offer these sorts of trainings. A quick Google search will give you a good list. That said, you may also simply want to head over to the California Department of Fair Housing and Employment and sign up for the free training that they offer.

Recordkeeping Requirements

The State of California requires that employers must not only provide these sexual harassment prevention trainings during work hours free of charge to the employee, but they must also keep sufficient records that they have done so and have complied with the law.

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Specifically, the employer must keep records (for two years) and proof of compliance of the following:

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• Type of training offered
• Names of the employees trained
• Date or dates when each employee received their training
• Sign-in sheets
• Certificates of attendance/completion 
• Copies of all written and/or recorded materials of the training
• Name of the trainer and training company that provided the seminar

Employee Handbook and Policy Requirements

The law also requires that covered employers have a written anti-harassment policy, as well as discrimination and retaliation prevention policy and that they provide each employee a copy of that policy with a sexual harassment information sheet (a.k.a. a poster or fact sheet) upon hiring. Updating your employee handbook and giving it to all new hires will cover this requirement.

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Finally, you’re required to post applicable notices from the state. In addition to giving new hires a copy of California’s sexual harassment poster or fact sheet, make sure to display it for all employees to see. Either of these documents will satisfy the requirements of the law. 

Meet the Training Requirements in Four Steps

This compliance training may seem like a lot to do and keep track of, but in reality it is not. Here are the basic steps California employers need to follow to be in compliance with California law on sexual harassment training:

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1. Schedule training for all employees.
2. Keep accurate training records.
3. Create and distribute anti-harassment policies and fact sheet. Update your employee handbook with this information too.
4. Post all required notices.