BILL ANALYSIS
AB 1501
Page 1
Date of Hearing: April 18, 2007
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre R. Swanson, Chair
AB 1501 (Niello) - As Amended: April 10, 2007
SUBJECT : Sexual harassment education
SUMMARY : Revises provisions of existing law relating to sexual
harassment training of supervisors. Specifically, this bill :
1)Eliminates the requirement that the mandated sexual harassment
training must constitute "at least two hours" of training and
education.
2)Eliminates the requirement that the training and education
must be presented by "trainers or educators with knowledge and
expertise in the prevention of harassment, discrimination and
retaliation."
3)Eliminates obsolete language.
EXISTING LAW :
1)Requires an employer with 50 or more employees to provide at
least two hours of classroom or other effective interactive
training and education regarding sexual harassment to all
supervisory employees in California, and to all new
supervisory employees within six months.
2)Requires covered employers to provide sexual harassment
training and education to each supervisory employee in
California once every two years.
3)Specifies that the training and education shall include
information and practical guidance regarding the federal and
state statutory provisions concerning the prohibition against
and the prevention and correction of sexual harassment and the
remedies available to victims.
4)Specifies that the training and education required shall also
include practical examples aimed at instructing supervisors in
the prevention of harassment, discrimination, and retaliation,
and shall be presented by trainers or educators with knowledge
and expertise in the prevention of harassment, discrimination
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and retaliation.
FISCAL EFFECT : Unknown
COMMENTS : Assembly Bill 1825 (Reyes), Chapter # 933, Statutes
of 2004, required employers having 50 or more employees to
provide at least two hours of classroom or other effective
interactive training and education regarding sexual harassment
to all supervisory employees.
However, the regulatory process implementing the requirements of
AB 1825 has been lengthy and complicated.
On December 16, 2005, the Fair Employment and Housing Commission
(Commission) issued initial proposed regulations on the
requirements of AB 1825. These proposed regulations were
subsequently modified (after several rounds of public comment
and hearing) on June 20, 2006, August 29, 2006, and October 2,
2006.
On November 14, 2006, the Commission issued final proposed
regulations. However, on February 6, 2007 the Office of
Administrative Law (OAL) issued a "Decision of Disapproval of
Regulatory Action" rejecting the proposed regulations. OAL
based its disapproval on grounds that the proposed regulations:
(1) failed to comply with the "clarity" standard of the
Administrative Procedures Act (APA); and (2) failed to comply
with procedural requirements of the APA.
Subsequently, the Commission issued modified regulations on
February 27, 2007 and March 27, 2007. The public comment period
on the last set of modified regulations (the March 27, 2007
version) ended on April 16, 2007.
For purposed of this bill, two specific issues in the proposed
regulations are relevant and will be discussed herein: (1) the
"two hour" requirement; and (2) the "trainer and educator"
definition.
The "Two Hour" Requirement
The initial proposed regulations (December 16, 2005) provided
the following definition concerning the "two hour" requirement
of the mandated training:
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"Two hours" of harassment training is either, two hours of
classroom or webinar
training or, the amount of time that the same content may
be covered in an e-learning program for an average learner.
E-learning programs are not required to have a built-in
timer that causes rapid learners to view additional content
until the two hour standard is met.
The Commission's Initial Statement of Reasons provided the
following:
This "two hours" definition attempts to give uniformity to
the two hours requirement, regardless of whether the
training is by classroom training, "webinar" or
"e-learning." Utilizing classroom content training as the
measure of what constitutes "two hours" gives an operative
definition of an e-learning course that is long enough,
containing enough
content, without requiring companies to keep actual records
on how long each individual
employee took to complete an e-learning course?
?The Commission considered but rejected creating different
definitions of "two hours" for each training modality:
classroom, webinars and e-learning training. The
Commission's "two hours" definition gives uniformity to the
two hours requirement, regardless of whether the training
is by classroom training, webinar or e-learning. Utilizing
classroom content training as the measure of what
constitutes "two hours" gives an operative definition of an
e-learning course that is long enough, containing enough
content, without requiring companies to keep actual records
on how long each individual employee took to complete an
e-learning course. This definition also prevents a fast
learner taking an elearning course from being penalized and
required to cover more content than others.
The Commission estimates that requiring employers to track
individual e-learning time
would cost an additional $2 per training. Assuming that
one-third of supervisors are
trained using e-learning, or 39,163 supervisors, this would
create an additional $78,326 in
costs for employers.
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However, the proposed regulation definition of "two hours" was
subsequently amended on several occasions. The current proposed
regulation reads as follows:
"Two hours" of training is two hours of classroom training
or two hours of webinar
training or, in the case of an e-learning training, a
program that takes the supervisor no
less than two hours to complete.
This bill proposes to eliminate the statutory language
specifying that the mandated sexual harassment training must
constitute "at least two hours" of training and education.
Definition of "Trainers or Educators"
The existing statute specifies that the required training and
education shall be presented by "trainers or educators with
knowledge and expertise in the prevention of harassment,
discrimination and retaliation."
The definition of "trainers or educators" has also gone through
a number of complex revisions during the Commission's
administrative regulatory process. The current proposed
regulation contains the following definition:
"Trainers" or "Trainers or educators" qualified to provide
training under
this section are individuals who, through a combination of
training and experience
have the ability to train supervisors about the following:
1) what are unlawful
harassment, discrimination and retaliation under both
California and federal law;
2) what steps to take when harassing behavior occurs in the
workplace; 3) how to
report harassment complaints; 4) how to respond to a
harassment complaint; 5)
the employer's obligation to conduct a workplace
investigation of a harassment
complaint; 6) what constitutes retaliation and how to
prevent it; 7) essential
components of an anti-harassment policy; and 8) the effect
of harassment on
harassed employees, co-workers, harassers and employers.
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A trainer shall be one or more of the following:
1. "Attorneys" admitted for two or more years to the bar of
any state in the
United States and whose practice includes employment law
under the Fair
Employment and Housing Act and/or Title VII of the federal
Civil Rights
Act of 1964, or
2. "Human resource professionals" or "harassment prevention
consultants"
working as employees or independent contractors with a
minimum of two or
more years of practical experience in one or more of the
following:
a) designing or conducting discrimination, retaliation and
sexual harassment
prevention training; b) responding to sexual harassment
complaints or other
discrimination complaints; c) conducting investigations of
sexual harassment
complaints; or d) advising employers or employees regarding
discrimination,
retaliation and sexual harassment prevention, or
3. "Professors or instructors" in law schools, colleges or
universities who have a
post-graduate degree or California teaching credential and
either 20
instruction hours or two or more years of experience in a
law school, college
or university teaching about employment law under the Fair
Employment
and Housing Act and/or Title VII of the federal Civil
Rights Act of 1964.
(B) Individuals who do not meet the qualifications of a
trainer as an attorney,
human resource professional, harassment prevention
consultant, professor or
instructor because they lack the requisite years of
experience may team teach
with a trainer in classroom or webinar trainings provided
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that the trainer
supervises these individuals and the trainer is available
throughout the training
to answer questions from training attendees.
This bill proposes to eliminate the statutory language that
requires the training to be presented by "trainers or educators
with knowledge and expertise in the prevention of harassment,
discrimination and retaliation."
ARGUMENTS IN SUPPORT :
The author argues that the original legislation that mandated a
"two hour" training requirement was based on a 1991 Connecticut
law that pre-dated modern e-learning on desktop computers and
was based primarily on conventional instructor-led classroom
training. While the original regulations addressed this problem
by proposing averaging of e-learning times to achieve the
equivalent "two hour" requirement, this language was
subsequently removed from the proposed regulations.
According to the author, in order to comply with the "two hour"
requirement, a training course must contain a timer or be under
program control such as a video on a computer. Any external
controls in e-learning interfere with the self-study nature of
e-learning that requires the attention of the learner.
The author argues that "self-pacing" is simply not compatible
with the "two hour" requirement - either a course is self-paced
or it is not. The "two hour" requirement has led to
counter-productive distortion in all training delivery formats
except conventional instructor-led classes.
In addition, the author argues that the proposed regulatory
definition for "trainers or educators has led to
"over-specification" that has greatly increased the costs beyond
those originally projected by the Commission in its "Initial
Statement of Reasons." According to the author, the proposed
regulation has virtually excluded all internal training
personnel from qualifying to deliver training except those with
multiple years of employment law practice.
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ARGUMENTS IN OPPOSITION :
The California Labor Federation, AFL-CIO (Labor Federation),
opposes this bill, arguing that it is very important that
employers provide sufficient training to supervisory employees
about sexual harassment to maintain safe and comfortable
workplaces and to limit liability for supervisors and employers.
This bill would water down existing requirements that ensure
that training is meaningful. Specifically, it would delete the
requirement that trainers be experts in the field of harassment,
discrimination, and retaliation prevention and it would
eliminate the two-hour time minimum. Such changes would be
likely to affect the quality of the training provided and would
further suggest to employees that this issue is not important
enough to warrant even two hours once every two years.
Furthermore, the Labor Federation argues that the rules covering
the type of training that must be provided to supervisory
employees have undergone repeated revisions through the
regulatory process. Current language is based upon the public
comments received and there is no reason to make further
modifications. To do so would disregard the OAL process and the
extensive time and energy that has gone into developing the
current rules.
REGISTERED SUPPORT / OPPOSITION :
Support
Wendell Laidley, New Media Learning, LLC
Opposition
California Labor Federation, AFL-CIO
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091