These Guidelines Will Set National Expectations for Employer Training according to Littler Mendelson Attorney Appointed to the Blue Ribbon Advisory Committee on the AB 1825 regulations.

San Francisco, CA (December 7, 2005) - Ever since the Governor of California signed AB 1825 into law in September of 2004, employers throughout the state have been scrambling to figure out how best to comply with its provisions by the December 31, 2005 deadline. In July, the California Fair Employment and Housing Commission (FEHC) convened a Blue Ribbon Advisory Committee (Advisory Committee) to help clarify the law and provide business with a clear set of regulations to follow. The draft regulations, which will be released for public comment on December 16, 2005, go a long way toward answering employer questions and reducing compliance anxiety, while setting a benchmark for compliance programs throughout the nation, according to the Advisory Committee member from Littler Mendelson. Nonetheless the draft document includes a few new wrinkles that employers will have to pay attention to if they hope to be compliant.

To many, AB 1825, requiring employers of more than 50 employees who do business in the state to provide harassment prevention training to its supervisors of California employees—simply codified an already widely instituted practice. But, to the majority of the state's businesses, it also complicated compliance by engendering conflicting opinions on such issues as its applicability to out of state supervisors of California employees, the type of training that qualifies as "interactive," and whether the harassment prevention training had to be limited to sexual harassment. The good news for employers is that the draft regulations clarify matters by detailing 11 elements of required training and addressing more than 40 separate issues, questions and concerns.

"The first and probably most important immediate question the regulations answer" according to Garry Mathiason, Littler attorney and member of the Advisory Committee "is how to comply by December 31, 2005 with regulations that will not be finalized until next year." The answer is that substantial training undertaken in a good faith effort to meet the requirements of AB 1825 will be viewed by the FEHC as sufficient even if it lacks some of the detailed compliance requirements listed in the regulation. Only future training would require detailed compliance with the final regulations. "Employers want to follow the law and do the right thing," Mathiason explained. "The new draft regulations acknowledge those efforts approving the overwhelming majority of training programs that have been implements in 2005 to meet the deadline."

In addition to providing answers to some of the most common questions raised by AB 1825, such as who qualifies as instructors and what type of live or computer-based training programs are satisfactory, the regulations go beyond the law to give guidance in such critical areas as the tracking of employee training and underscoring the importance of preventing all forms of unlawful harassment in the workplace.

To help draft the regulations, the FEHC recruited members for the Advisory Committee who could provide excellent guidance and expertise on harassment and discrimination prevention, as well as employment law training and litigation. As a recognized leader in all of these fields, Garry Mathiason, a Littler Mendelson employment law litigation attorney and Chair of the firm's Corporate Compliance Practice Group, was appointed to the Advisory Committee. Mr. Mathiason in turn credits the FEHC and its expert staff for the proposed language.

While the AB 1825 regulations are in draft form and subject to change, the best course of action for employers is to train as broadly and extensively as possible given the current guidance available from the FEHC. Until the regulations are finalized, Mathiason recommends that employers with more than 50 employees (some of whom are in California):

• Assume AB 1825 applies to you even if you do not have 50+ employees residing in California.
• Carefully audit who is exerting supervisory influence over your California employees – including those supervisors who do not reside in California. Cast a broad net in defining your training audience.
• Train beyond sexual harassment to cover other forms of workplace harassment.
• If you are using e-learning, ensure that the program is sufficiently interactive and includes:
  • Engaging practical examples and hypotheticals.
  • A mandatory feedback or a participation component that occurs at least every 15 minutes.
  • The ability to ask e-mailed questions. Many of these can be answered with a FAQ feature, but for unique questions you should then set up an internal process where by these inquiries can be consolidated, reviewed and responded to within a reasonably prompt time frame. (See www.elt-inc.com for more details.)
• Ensure that your classroom/webinar trainer, or the developer of your e-learning program can stand up to the knowledge and experience requirements detailed above. Ask yourself whether you would be comfortable with your trainer or e-learning vendor being cross-examined about relevant credentials.

Harassment prevention training is now the law in California. To comply with the law and soon-to-be formally released regulations, employers must pay careful attention to not only who they train but also how often and the qualifications of the organizations and personnel they engage to conduct their training programs.

The draft FEHC regulations will be released by December 16, 2005, and will be available online. Once they are released, businesses and the public will have a 45 day period to comment. Public hearings before the FEHC will take place on February 1 (San Francisco) and February 3 (Los Angeles). Thereafter the FEHC is expected to adopt the final regulations.

Contact Amanda Wheatcroft to get the story on proposed draft regulations for AB 1825, or a copy of In the Home Stretch: Huggers, Instructional Designers, and the Pending Draft of the FEHC's proposed Regulations for California's Required AB 1825 Harassment Training.

About Littler Mendelson

With more than 400 attorneys in major metropolitan areas nationwide, Littler Mendelson is the largest law firm in the United States devoted exclusively to representing management in employment, employee benefits and labor law matters. The firm's client base ranges from Fortune 500 companies to small-business owners. Established in 1942, the firm has litigated, mediated and negotiated some of the most influential cases and labor contracts in the nation's history. Its affiliated global migration practice, Littler Global, provides support to major companies in moving employees around the world. Littler offers live instruction in the classroom and over the web for clients through its Legal Learning Group and self-paced on-line instruction through ELT, Inc., a company formed by Littler.