BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1501
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          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