This Special Bulletin was authored by Gage C. Dungy.

NOTE:  This update incorporates further amendments to SB 778 and serves to remind clients that these are only proposed fixes to the existing SB 1343 harassment prevention training requirements that are not yet law.  SB 778 is subject to change again before becoming law.  If SB 778 becomes law, we will notify you immediately. In the meantime, employers must comply with the training requirements and deadlines imposed by SB 1343, which took effect January 1.  We have taken the unusual step of updating you about the status of pending legislation because we are aware that many clients are currently assessing whether and when to re-train their employees.

On December 6, 2018, LCW published a Special Bulletin titled, “DFEH Provides Guidance on Impact of New SB 1343 Harassment Training Requirements: Some Questions Answered, Many Still Remain – Including Possibility that ALL Supervisory and Nonsupervisory Employees Need to Be Trained or Retrained Again in 2019”.  That bulletin informed clients that the DFEH published still valid guidance regarding SB 1343, including a mandate that all nonsupervisory employees to undergo harassment training in calendar year 2019, even if they received the training in 2018.  The Legislature is now considering SB 778, clean-up legislation introduced on February 26, 2019, to address employer concerns about some of the onerous requirements of SB 1343, as interpreted by the DFEH.  The proposed bill language is available at:  http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB778

If SB 778 Passes in Its Current Form, Compliant Harassment Prevention Training Provided After January 1, 2018 Will Suffice Until Calendar Year 2021.

The DFEH published  a notice in November 2018, titled “Sexual Harassment and Abusive Conduct Prevention Training Information for Employers”, that said all covered employees would be required to undergo harassment prevention training by the end of calendar year 2019.  The DFEH premised this mandate on the following language in Government Code section 12950.1(a):

An employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by the January 1, 2020, deadline.

Unfortunately, this awkward statutory language, and the interpretation given to it by the DFEH, requires any employer who already provided otherwise compliant harassment prevention training in 2018 to re-train the same employees again in 2019.

SB 778, in its present form, would replace the above-referenced sentence in Government Code section 12950.1(a) with the following sentence:

An employer who has provided this training and education to an employee after January 1, 2018, is not required to provide refresher training and education until after December 31, 2020.

There is Strong Indication that SB 778 Will Become Law

SB 778 is a “committee bill” in the State Senate, meaning all of the members of the Senate Labor, Public Employment and Retirement Committee, including legislators from both parties, approved of the bill.  At this point, there is no indication of any opposition to the bill and all signs point to it passing.

SB 778 does not include an “urgency” clause that would allow it to take immediate effect upon signature of the Governor.  As presently worded, the legislation would not take effect until January 1, 2020.  There is some support in the Legislature for an urgency clause to be added, but urgency legislation requires 2/3 approval of both the Senate and Assembly.  Nevertheless, the fact that SB 778 is a committee bill with bi-partisan support leaves open the possibility that could happen.

While SB 778 is Not Yet Law, Here’s What Agencies Should Do Now:

Employers Who Provided Harassment Prevention Training in Calendar Year 2018 May Consider Waiting to Reschedule Training This Year

SB 778 will hopefully be welcome news to employers who were confronted with the awkward result from SB 1343 requiring follow-up refresher training this year when already provided last year in 2018.  While not yet law, the fact that SB 778 has bipartisan support is a good indicator that it will become law.  Therefore, employers who provided otherwise compliant harassment prevention training in 2018 may wish to consider delaying refresher training until SB 778’s fate is determined in the Legislature.  LCW will publish updates on SB 778 on its blog as information becomes available.

Assuming that SB 778 becomes law, employers should consider scheduling future training for supervisory and non-supervisory employees on the same two-year track to ensure that employees are receiving consistent training to the extent possible.

Employers Who Either 1) Are On a Two-Year Track to Provide Supervisory Employees Harassment Prevention Refresher Training in Calendar Year 2019, or 2) Did Not Provide Non-Supervisory Employees With Compliant Harassment Prevention Training in 2018 Still Need to Still Provide Such Training in 2019.

Employers who did not provide otherwise compliant harassment prevention training in 2018 still need to provide the training this year.  SB 778 would not provide any relief for such employers.

Provide Harassment Prevention Training to New Hires Within Six Months.

Importantly, employers must provide new employees with harassment prevention training within six (6) months of hire.  Therefore, regardless of whether your agency provided harassment prevention training to employees in 2018, any new supervisory or non-supervisory employees would still need to receive this training within 6 months of their hire date if that timeline falls in calendar year 2019.

LCW, which has offered effective harassment prevention training for decades, offers SB 1343 training.  For more information on our training programs, contact our Training Coordinator Anna Sanzone-Ortiz at asanzone@lcwlegal.com or (310) 981-2051 or Director of Marketing and Training Cynthia Weldon at cweldon@lcwlegal.com or (310) 981-2000.

If you have any questions about this Special Bulletin, please contact attorneys in our Los Angeles, San Francisco, Fresno, Sacramento, or San Diego offices for further guidance.