On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Before SB 1343 was enacted and took effect on January 1, 2019, the California Fair Employment and Housing Act (“FEHA”) prohibited discrimination and harassment, including harassment based on sex or any other protected characteristic.
Further, it required employers with 50 or more employees to provide at least two hours of harassment and related training, including that designed to preventing abusive conduct (i.e., “bullying”) and harassment based on gender.
The new law requires all California employers with five or more employees (including temporary or seasonal employees) to provide two hours of harassment training to supervisors and one hour to nonsupervisorial employees, and to do so prior to January 1, 2020. The training must be provided within six months of hire or promotion, and at two year intervals after that.
Training must be provided to temporary and seasonal employees within 30 days of their hire, or 100 hours of work, whichever occurs first.
Thus, the new statute not only expands the training requirement to include all employees, but also adds deadlines within which required training must be administered as well as the frequency with which it must be provided.
Consequences of Violation
Employers should be aware that the consequences for violating the new training requirements may far exceed administrative sanctions. Plaintiffs’ lawyers can be expected to exploit the employer’s failure to comply with the new training requirements in the event of harassment-related litigation. Employers can expect to defend against the argument that unlawful harassment would not have occurred but for the employer’s failure to comply with its legal duty to train employees. Similarly, plaintiffs will inevitably seize on violations of the training requirements to explain away the complaining party’s failure to properly report acts of harassment immediately after the event, as required by properly-drafted workplace harassment policies.
But, perhaps most significantly, employers will encounter great difficulty convincing a jury (comprised exclusively of employees) that they vigilantly complied with their legal duty to protect the plaintiff from unlawful harassment, once it is shown that the employer failed to comply with the most basic element of any harassment prevention procedure: training employees in accordance with the new mandatory requirements.
The legal system has responded to powerful political currents inspired by the #MeToo movement with the enactment of SB 1343. The same political pressures can be expected to influence the population of potential jurors who will decide cases of harassment brought against employers. Consequently, it is imperative that employers fully understand their legal obligations related to workplace harassment, and the potentially disastrous consequences of neglecting them.
Beyond the mundane obligation to comply with the new law, however, resides a larger issue. If employers will embrace the inescapable fact that the best way to prevent harassment claims is to identify and properly investigate any and all complaints at the moment of awareness, they will recognize that the new law is a powerful asset. This is because it authorizes them to, in effect, educate and recruit the entire workforce as an army of detectives in the common cause of identifying, reporting and investigating complaints, thus vastly enhancing the employer’s prospects for eliminating unlawful harassment before it matures into a legal dispute.
This, combined with carefully-drafted personnel policies, specifically including a mandatory arbitration policy, can bring employers very close to the promised land of a harassment (and litigation)-free workplace.
That is something everyone can believe in.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over 37 years. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives. He has a remarkable record of success: Not one employer-client acting on his advice has been sued in over 37 years.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. http://www.jaygputnam.com/newsletter/