Hobson's Choice for Risk Managers: Sexual Harassment Prevention Training of Supervisors is a Must for Prudent Employers
Author: Nicholas J. Toghia, BA, JD, MBA
Which is better? To spend a few hundred dollars to comply with yet another unfunded state mandate or to wait until you get caught and possibly face fines, regulatory sanctions, or perhaps even a lawsuit by a disgruntled employee?
That is the question employers must answer for themselves in response to Assembly Bill 1825, adopted by the California Legislature last year and signed into law by Governor Schwarzenegger which orders two-hours of interactive training to supervisors of employers with at least 50 employees..
Employers "receiving the services of 50 or more persons" are covered by the statute. The wording "receiving the services" was intended to include
• full time employees on the payroll who receive a W-2 form • part time employees on the payroll who receive a W-2 form • individuals providing "services pursuant to a contract" who receive a 1099 form • persons "acting as an agent of en employer" who receive a 1099 form • persons providing services working out of state or even outside the country for the employer such as marketing, sales and technical support personnel (either W-2 or 1099 forms)
Although AB 1825 mandates training and education of supervisors, it also declares a claim that if the training and education required by the law did not reach a particular individual or individuals this does not in and of itself result in employer liability for sexual harassment. The bad news is that compliance with the statute does not automatically insulate or shield the employer from liability for sexual harassment claims brought by a current or former employee or job applicant. With the deadline not far away, employers are facing a conundrum: if compliance does not furnish a complete defense, why incur the expense of the complying with the law?
The answer comes from the annals of risk management: if businesses can reduce by a few percentage points the risk of loss from a known cause, every prudent business manager will take steps to control that risk and try to avoid or mitigate the loss. Sexual harassment claims represent a loss that can be controlled and contained by education and training. According to a recent article, "Most legally sophisticated companies provide such training to all supervisory and non-supervisor employees. That's the smart thing for small and large employers to do to minimize their legal exposure to [sexual harassment] claims."
The supervisor education must be conducted via "classroom or other interactive training" and include the following topics:
• Information and practical guidance regarding federal and state provisions for the prevention of sexual harassment. • Information about the complaint procedures and the remedies available to victims of sexual harassment in employment. • Practical examples of physical, verbal, and written misconduct that violates the law aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation that exposes supervisors (and their employer) to liability.
In light of the clear mandate of AB 1825, employers face a Hobson's choice, an apparently free choice that actually offers no alternative. If an employer violates the requirements of the law, the Fair Employment and Housing Commission shall issue an order requiring compliance. Because willful violation of a statute is considered negligence per se in this state, the victim of any sexual harassment whether based on a job detriment or hostile work environment claim, will be able to capitalize on the employer's noncompliance with AB 1825. Since the initial education and training must be completed by December 31, 2005, the clock is ticking, time is of the essence for employers, and prevention is the best cure that should not be ignored.
About the author: Nicholas J. Toghia, BA, JD, MBA - Opus Group LLC Sexual Harassment Prevention Training- AB 1825 compliance - California