Preventing Workplace Harassment, Discrimination, and Retaliation

For purposes of harassment prevention training, the FEHA defines “ supervisor ” as:

“ any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. ” 185

Because of this broad definition, “supervisors” are not limited to only those who are accountable or responsible for the work of their subordinates.

Any employee who has any level of supervisory discretion, as opposed to routine clerical duties, is a “supervisor” as defined in the Fair Employment and Housing Act. 186

LCW Practice Advisor

2. SB 1343 E XPANSION OF H ARASSMENT P REVENTION T RAINING Pursuant to SB 1343, effective January 1, 2019, an employer with five or more employees, as well as all public sector employers (state, political or civil subdivisions of the state, special districts, counties, or cities) must provide the following training:  Supervisory Employees : By January 1, 2020, provide at least two hours of classroom or other interactive training regarding sexual harassment to supervisory employees.  Nonsupervisory Employees : By January 1, 2020, provide all non-supervisory employees with at least one hour of classroom or other effective interactive training and education regarding sexual harassment within six months of assuming their positions.  Temporary/Seasonal Employees : Beginning January 1, 2020, employers must also provide the applicable training for seasonal and temporary employees, or any employee that is hired to work for less than six months. This training must be provided within thirty calendar days after the employees’ hire date, or within their having worked 100 hours – whichever occurs first. 187 Except as noted above, SB 1343 did not modify or require any new content for these mandated harassment prevention trainings from those already implemented under AB 1825. As a result, it is not clear what the difference in content will be between the two-hour supervisory training and the new one-hour nonsupervisory training. However, the California Department of Fair Employment Housing (“DFEH”) is mandated by SB 1343 to provide employers with online training materials in order to comply with these requirements. 189 The DFEH has indicated that such materials will be released by “ late 2019 ”. 190 The DFEH also has the authority to issue enacting regulations on SB 1343 as it has done previously for the supervisory harassment For all employees, the required training must occur at least once every two years. 188

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 48