Episode 1: Employers Lead the Charge: Preventing Sexual Harassment in the California Workplace

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's executive vice president of legal affairs and an expert on employment law. Our podcast today is about sexual harassment in the workplace. And with me is Laura Curtis, Cal Chambers, policy advocate on labor and employment. Welcome, Laura.

Thanks so much for having me.

Oh, it's our pleasure. So, Laura, let's talk about sex.

Let's.

Of course, this is a G rated podcast, so we're going to keep it clean. But putting jokes aside, in all seriousness, sexual harassment in the workplace has been quite a big topic over the last maybe year, year and a half.

Yeah, it's been a huge topic.

So we've all seen the high profile cases involving celebrities. We've seen, of course, also the stories involving the legislature, which we could talk about later. But you know, with all of the news reports, there's been a lot of maybe confusion, concern among employers and employees wondering what's okay and what's not. Right? Yeah. So, you know, we know that compliments are great. As women, we love to see receive compliments. Men love to receive compliments under the standards of the law, and we'll talk about that in a little bit. But would it be harassment if a male coworker simply complimented a female because her hair looks nice?

Yeah. I mean, the legal answer is always, it depends, Right. I mean, if someone's just providing a simple compliment that you look nice today, your hair looks nice. No. I mean, that's not going to rise to the level of harassment if it were to continue and it's over and over again, or it becomes more sexual in nature and it rises to this level, as the legal term is severe or pervasive, where it happens, you know, and becomes so egregious, then it could become sexual harassment.

So when you say severe and pervasive. So if, you know, I just got my hair done and I come in and employee or co worker says, erica, your hair looks great, that's a compliment. Oh, yeah. I'm not going to be running to HR saying, oh my gosh, I think I just was harassed. Right. But if it turns into my hair looks great one day, my dress is cute the next, and all of a sudden there's daily compliments. Would that start to be kind of along those? I don't know if it would be severe, but it would be more pervasive. Yeah.

And it all depends, you know, if those are also, if there's gestures going along with this or there's any sort of physical touch or anything like that. So it's completely depends on the circumstance. But yes, I mean, it could definitely rise to the level depending on what's kind of going on in the surrounding circumstances.

So I could see how for employees, I mean, yes, employers of course are concerned, but for employees too, trying to decipher what's permissible conduct and what isn't has become somewhat of a gray area with today and with all of the news reports on different harassment crimes. Because I think it can be said that for a lot of the news reports we were talking about even sexual assault.

Oh, gotcha.

Yeah.

And that really is a whole different standard.

So when we talk about sexual harassment in the legal sense, I know in California we have the Fair Employment and Housing act and then under federal law also that protects employees and puts some obligation on employers. Can you talk to me a little bit about what employer obligations there are under California law?

Yeah, so there's quite a few. I mean, there's definitely the training requirement, which has been recently changed throughout the law. There's notification requirements. Employers additionally should have policies against this kind of activity. And then once the employer is aware of or made aware of, then there's the requirement for investigation. So once an employee makes a complaint, then you have all the investigation requirements.

So there's quite a bit on an employer as far as, and correct me if I'm wrong, you know, having that affirmative duty to maintain a harassment free workplace and to take complaints seriously. And I know that, you know, what we've seen with all of the me too and with time's up movements as well as in the aftermath is this concern that employees aren't coming forward or they're concerned about coming forward. What are some things that employers can do to try and get the word out that we want folks to be coming and letting us know so that we can look into it and take corrective measure if necessary.

Yeah, I mean, one of the things that we've heard, and again, I'll get into this more, but one of the things that we consistently heard throughout this legislative process is culture, employer culture. And how are you going to change your culture? Because you, you know, there's training, there's notification, there's the duty to prevent and all of that. But really it starts with what your employment facility is like and what kind of environment you're creating. And so I think a lot of that is just transparency, openness with your employees, checking in on them, seeing how they're doing, those kind of things that would allow for someone to feel welcome and open, to let you know that something's going on. Because really, I think that's the biggest issue that employers have, is not finding out about this information until it's happened. And so then not only does it happen to that employ, but potential other victims that it's also happening to. So I think that's one of the biggest things is trying to really create a culture, letting them know that you're, you know, that you're trying to actively prevent harassment, that you don't stand for harassment, that you're not going to do anything, you know, to increase any sort of harassment, and that, you know, that that's the employer's take. And then obviously all the other requirements, prevention, notification and things like that.

Right. So let's talk just a little bit about what the existing requirements are and then we can have you tell us a little bit about how MeToo and Time's up impacted the legislative session last year. What are the new laws that we have? Because prior to the MeToo movement, California did have a number of anti harassment type laws or requirements that were on the books. So, for example, employers had to have an anti harassment prevention policy in place that, you know, they needed to make sure employees saw and read and have the poster in the workplace and provide that pamphlet to employees upon hire about sexual harassment. But it appears that given all of the news reports that we had, and of course you could address this as far as even claims that impacted the legislature itself certainly was a catalyst for additional legislation. Can you talk a little bit about that?

Yeah. So the unique thing about all of this is that you hear a lot of the stories that weren't necessarily a traditional employer employee environment. And so I think that that has a big impact. And obviously people were reactive and rightfully so reactive because of the MeToo movement. And then there was the Sacramento movement itself, which was the we said enough movement, where I believe it was Approximately just over 140 females came forward between legislative members, lobbyists, staffers came forward drafting a letter and signing their name to a letter saying that they were victims of harassment in and around the Capitol. And so that really hit home to Sacramento. And the legislature took notice. And then obviously there was a couple members of the legislature that were accused of sexual harassment. And so all of that brought forth a slew of legislative bills regarding the MeToo movement and regarding sexual harassment. And what was done, there was 12 legislative hearings, informational hearings on what the current standards were, whether or not the severe or pervasive standards should be lowered, all of those details. And so it really did have A big impact on, you know, the legislature. And so there was, you know, understandably, again, a lot of the members themselves wanted to bring forward bills and introduce legislation to say, we're doing what we can and we're addressing the situation. But I do think that a lot of what was overlooked is what's already in place. And I think that there, you know, there was a lot of potential ways of maybe enforcing those requirements, ensuring that people were actually following those, and then looking at the employers that were following them versus the kind of unique employment or unique work environment such as Hollywood. I mean, that's not your normal office environment.

That's right.

And that's where we heard so much of this.

Right.

And honestly, the Capitol's not your normal workplace environment either. So, you know, it was just, I think that it has affected the employer community and brought a lot of attention to the issue, which is wonderful. But at the same time, there was a lot of requirements placed on, especially the private employers, that were not necessarily the target of all of this.

Let's talk about one of those requirements that private employers need to be aware of. For several years now, California employers, those with 50 or more employees, had to provide two hours of harassment prevention training to supervisors. It was limited to just supervisors. It was limited to those employers with 50 or more employees. It was enacted in 2005, so quite some time ago, where employers were providing this harassment prevention training, detailed requirements as to what the training had to include. And we saw over the last several years changes to that law. So several years later, we had to talk about abuse of conduct in the training. Then, of course, transgender training and issues related to gender identification and that sort of thing needed to be in the training. And now we have the training expanded again.

Yes.

So the legislature passed SB 1343, which does several things to expand the existing training. Can you talk a little bit about that?

Yeah. So what it does is, as you said, the supervisory training was required, which was two hours of supervisory training for employers of 50 or more. And this now requires not only that, but it applies to all employers with five or more employees, and it requires one hour of training for all employees, and then additionally, two hours of training for supervisory employees.

Okay, so just to boil this down and break it down, because I have a feeling that a lot of employers aren't even aware that this is going on. So if I'm an employer with five or more employees, does that just employees in California, or is it employees anywhere in the world?

Yeah. So employees that you hire, if you're a California Employer that'll be interacting obviously with your employees in California and temporary employees in addition. So it's not just full time employees, it's also temporary employees. So it's the whole slew.

Right. But as far as how do I know how many employees I have to meet that five employee count? So if I had one employee in California and four in Nevada, would I still fall under that five employee count to trigger the training? Because I only have one employee in California. But the training itself would apply to employees in California. Yeah. Okay. So I am five or more employer. I've got to provide the harassment prevention training, which is a great thing because it's educating my workforce about what is permissible, what isn't. We could talk about when you could compliment what you can't then for the employees, if my just rank and file employees, they need an hour of training. Correct. Then the supervisors or managers would need two hours. Okay, that's very interesting because it poses a lot of questions. Right. When this legislation passed, of course, Cal Chamber was quick to get the word out. We have a blog, we have articles for those smaller employers. This is a big how do I do this? How do I provide it? We do get a number of questions on the helpline regarding this. We did our 2019 labor and Employment Law seminar road trip throughout California. Of course we had a lot of questions when we talked about harassment prevention training. One of the big questions is, well, can anybody provide the training or do you have to be qualified to do the training?

Right. So the regulations, there's the Department of Fair Employment Housing define who is required to provide the training. So it has to be an HR professional, an attorney, or you know, someone that has had the experience with hr. You can't just have, you know, someone in the HR department do it. It has to be an HR professional.

So I know on the Department of Fair Employment and Housing's website they do have a frequently asked question and on there they do have the who's a qualified trainer, so to speak. So it isn't just somebody who might be helping hr. It's got to be someone who meets that qualification standard under regulations.

And I think that's also important to note that you want someone that's extra qualified, you want to go above and beyond and find someone that really knows the law. Because you're going to get a lot of nuanced questions, or at least you should, you know, during this training, you want people to be engaged and you want someone that can actually offer the advice and be reliable so that your employees are educated on the issue, certainly.

Because if, you know, there's a net benefit to having this training, I mean, many employers are already doing it, many were doing it who weren't even required to do it. And the gain is you have employees who are educated and know what's permissible and what's not. It allows the employer to be able to get their complaint process out there for employees to know who to contact if they feel that they might have been harassed. And to really emphasize the fact that when in doubt, just come talk to somebody. Let somebody know what's going on. Going back to the training, the training, the statute and the prior laws did dictate what had to be in the training. So what type of topics needed to be covered. And that's still the case with the expansion. Okay, so as far as timing, because I know this has been a real big issue, because for those employers that were covered by prior law, they were already training their supervisors. Every two years is required. So there's been a lot of question as to when does everybody need to be trained again? Because if I had employees that were trained in 2018, do I need to train them again in 2019?

Well, according to the Department of Fair Employment and Housing and their advice, you do. But again, we're trying to work on some legislative fix potentially to clarify that, because, you know, the author's intent as far as her press releases and things like that, that wasn't her intent. It was 2020 moving forward. So as of January 1, 2020, and moving forward, then you would be required to provide the training. But if you'd provided it already in, you know, within that two years, then you wouldn't need to provide it again.

Okay, so let me just get this straight here. So SB 1343, which expanded the training, it took effect January 1st of 2019. This year, 1918, the Department of Fair Employment and Housing is saying, look, we're interpreting this to mean that everybody, employees and supervisors, have to be trained in 2019. Yep. The author, however, is saying, well, wait a second, that's not really what I meant. And there's a potential. There's workings going on at the legislature to try and clarify that. And the clarification would be, what if you trained in 2018 and met the requirements, you would not have to train again until 2020. Wow.

Yeah.

Okay.

And it's not that the department's necessarily wrong, it's just that that's the way that the department interpreted the bill versus the way that the author had interpreted it. And of course, that Just gets down to the nitty gritty.

Yes. And a little civics lesson for those of us that may not be familiar with what we're talking about with the department and legislature. So the Department of Fair Employment and Housing implements this anti harassment bills and laws. And so they are the interpreting body, so to speak, and have been public about this is how they are following the law and meaning what it applies. Okay, so one last question before we wrap up. And of course this will be a topic that I'm sure we'll be talking about throughout the year. A lot of employers wanted to know whether they have to a pay for the training that they provide to their employees and whether the training must be done on the clock while the employee is working.

Yes, if the employee, it's technically work time. So yes, you do need to pay your employees for taking the training.

And I lied. I do have one more question as far as. Because there's so much to talk about with this topic. Right. As far as what type of training does it have to just be live training or are there other methods? For example, Cal Chamber offers an online training that employees could do at their desks while they're traveling. Are there different options for employers?

Oh, gosh, yeah. I mean, there's a slew of options out there for employers and that can be in person, again, online. It just has to be interactive, something that is keeping the employees attention. And honestly, from an employer standpoint, that's what you want. You want your employees to actually learn during this. You don't want them to completely zone out and just be clicking through slides. You want to make sure that it's interactive.

Right. Because I think for employers it's really important to look at this as a benefit, a benefit to them because it's only going to make their workplace a better place to work where the culture is all in agreement as far as what's appropriate conduct and what's not. Because as we know, what happens outside of work cannot necessarily come into work. And conduct outside of work may not always be the appropriate conduct either.

Yeah. And especially for employers, they don't want this to be a check the box type of thing. Oh, we did it and move on. You really want to make sure that this is something that is resonating with your employees in order to kind of go back to the beginning where we talked about culture, to make sure that you're having that cultural shift and that change.

Right. I absolutely agree. I think that, I think that many employers agree too that they want to make sure that their employees are satisfied in their job, feel comfortable in their job, are not afraid to speak out when something may appear wrong, or when they're just not even sure whether something's appropriate or not.

Definitely.

Well, great. Well, thank you Laura so much for joining us today. Always an exciting topic when we talk about sexual harassment prevention. There's a lot going on and I'm sure we'll be back again.

Yeah, thank you.

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