Following up on our December 6, 2018 Special Bulletin “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” regarding the impact of SB 1343’s new legal requirements expanding harassment prevention training to include nonsupervisory employees and also require all employees to be trained in calendar year 2019, there were a number of issues and concerns related to the implementation of this new law.  Governor Newsom has now signed into law clean-up legislation SB 778 on August 30, 2019 to address these issues.  SB 778 will now delay the implementation of the new harassment training requirements and any refresher training until calendar year 2020.  As urgency legislation, SB 778 went into effect immediately upon Governor Newsom’s approval of the law on August 30, 2019.

The changes made by SB 778 to Government Code section 12950.1 are available here:

http://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201920200SB778

SB 778 makes the following modifications to harassment training requirements that were added on January 1, 2019 as a result of last year’s SB 1343:

Implementation of Harassment Prevention Training Not Required Now Until Calendar Year 2020

The requirement to provide harassment prevention training to both supervisory and nonsupervisory employees is now not required until calendar year 2020, as opposed to the previous SB 1343 requirement that all applicable harassment training be conducted this year.  This new change in the law will allow employers more time to provide any required training to those employees not already trained – especially nonsupervisory employees who are now required to receive at least one hour of harassment training every two years.

This change will also provide the Department of Fair Employment and Housing (DFEH) more time to prepare and make available online harassment training for employers to use to comply with these requirements as mandated by SB 1343.  As noted in our earlier Special Bulletin, the DFEH announced in November 2018 in a “Sexual Harassment and Abusive Conduct Prevention Training Information for Employers” that it would not have such online training available until “late 2019”, which would have made it difficult for employers to use to satisfy the training requirements in time of the original deadline of the end of this year.

This new law should also give the DFEH more time to update their regulations on harassment prevention training to better define what is required for the new one-hour nonsupervisory harassment training.  Currently, such DFEH regulations only reference the previous AB 1825 two-hour supervisory employee harassment training requirements that are not entirely applicable to nonsupervisory employees.

Any Compliant Harassment Prevention Training Conducted in 2019 Would Not Require Refresher Training Again Until Calendar Year 2021.

By extending out the timeline to provide harassment training to calendar year 2020, SB 778 addressed concerns raised by employers who already provided compliant harassment training for both supervisory and nonsupervisory employees in calendar year 2018 and would have had to re-train such employees a year earlier this year under SB 1343.  With the new timeline for implementing this training now calendar year 2020, any previous 2018 harassment training would be on track for the standard two-year follow-up training in calendar year 2020.

Even for those employers who already provided SB 1343-compliant training to supervisory and nonsupervisory employees this year in 2019, the new law addresses this scenario by indicating that refresher training is not required again for another two years – which would be in calendar year 2021.

Conclusion – Now that SB 778 is Law, Here’s What Employers Should Do Now:

The Obligation to Implement the New One Hour of Harassment Prevention Training for Nonsupervisory Employees Can Be Delayed Until Next Year (2020)

The main impact of SB 778 is that employers now have more flexibility in implementing the new requirement to provide at least one hour of harassment prevention training to nonsupervisory employees that was established by last year’s SB 1343.  Instead of providing this new training this year, employers now have until the end of calendar year 2020 to provide this training to nonsupervisory employees.

Employers Who Provided Harassment Prevention Training in Calendar Year 2018 Can Now Wait Until Next Year (2020) to Schedule Refresher Training

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.  Now that SB 778 is effective immediately as urgency legislation, employers who provided compliant harassment training to supervisory or nonsupervisory employees in 2018 do not have to schedule refresher trainings earlier that the standard two-year track for refresher trainings – which would result in such trainings being scheduled next year (2020).

Employers Who Are Already on a Two-Year Track to Provide Supervisory Employee Harassment Refresher Training in Calendar Year 2019 Should Still Proceed With Such Training This Year.

For employers whose two-year track for providing refresher training instead applied to this year (calendar year 2019), LCW continues to recommend that you follow the guidelines set forth originally by AB 1825 and provide such training this year.  To the extent such employers want to also now include nonsupervisory employees as part of this compliant training, they are free to do so this year and would not have to do refresher training until two years later in calendar year 2021.

Continue Providing Initial Harassment Prevention Training to New Supervisory Employees Within Six Months of Hire.

Finally, it is important to continue following the existing requirement that supervisory employees receive this training within 6 months of hire under the original AB 1825 training requirements.  Therefore, regardless of whether an employer provided harassment prevention training to employees in 2018, any new 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 offers both supervisory and nonsupervisory harassment trainings that are complaint with SB 1343 and SB 778.  Leaders in client training, LCW has training options available to meet these requirements including Train The Trainer sessions, live in-person sessions and online interactive sessions.  For more information on our training programs, contact our Training Department at 310-981-2000 or AskLCW@lcwlegal.com.

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.