California Sexual Harassment Prevention Training FAQ

California Sexual Harassment Prevention Training FAQ

California Sexual Harassment Prevention Training FAQ

SB 1343 requires that all employers of 5 or more employees provide 1 hour of California sexual harassment prevention training and abusive conduct prevention training to non-managerial employees and 2 hours of sexual harassment and abusive conduct prevention training to managerial employees once every two years. Existing law requires the training to include harassment based on gender identity, gender expression, and sexual orientation and to include practical examples of such harassment and to be provided by trainers or educators with knowledge and expertise in those areas. The bill also requires the Department to produce and post both training courses to its website, which employers may utilize instead of hiring a trainer.

An employer is required to train its California-based employees so long as it employs 5 or more employees anywhere, even if they do not work at the same location and even if not all of them work or reside in California.

Under the DFEH’s regulations, the definition of “employee” for training purposes includes full-time, part-time, and temporary employees, unpaid interns, unpaid volunteers, and persons providing services pursuant to a contract (independent contractors) Click the below toolkit for additional tools, including a sample sexual harassment and abusive
conduct prevention training:

NEW UPDATE: By what date must employees be trained?

All employees must now receive training by January 1, 20211. Employers of 50 or more employees have an existing and ongoing obligation to train new supervisory employees within six months of assuming their supervisory position. Beginning January 1, 2021, new supervisory employees in workplaces of 5 or more employees must be trained within six months of assuming their supervisory position, and new nonsupervisory employees must be trained within six months of hire. Employees must be retrained once every two years.

NEW UPDATE: What if the employees are seasonal, temporary or otherwise work for less than six months?

Employers are required to provide training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first, beginning January 1, 20212. Employers are not required to train employees who are employed for fewer than 30 calendar days and work for fewer than 100 hours.

  • In the case of a temporary employee employed by a temporary services employer, as defined in Section 201.3 of the Labor Code, to perform services for clients, the training shall be provided by the temporary services employer, not the client


NEW UPDATE: When will the Department of Fair Employment and Housing’s online training
courses be available?

SB 1343 requires that DFEH make online training courses available on the prevention of sexual harassment and abusive conduct in the workplace. DFEH expects to have all trainings available by July 30, 2020. In the interim period, DFEH is offering a SEXUAL HARASSMENT AND ABUSIVE CONDUCT PREVENTION TOOLKIT, including a sample sexual harassment and
abusive conduct prevention training. Employers may use the training in conjunction with an eligible trainer to provide sexual harassment and abusive conduct prevention training.

  • SB 778 signed by Governor Newsom on 8/30/19 amended existing law to change deadline of harassment training until 1/1/2021.
  • 2SB 530 signed by Governor Newsom on 10/10/19 amended existing law to change deadline to 1/1/2021 for seasonal and
    temporary worker harassment training compliance.

SEXUAL HARASSMENT PREVENTION TRAINING FAQ

Do employers need to train independent contractors, volunteers, and unpaid interns?

No, it is not required that employers train independent contractors, volunteers, and unpaid interns. However, in determining whether an employer meets the threshold of having 5 employees and being subject to the harassment prevention training requirement, independent contractors, volunteers, and unpaid interns must be counted. For example, if an employer has 2 full time employees and 6 unpaid interns, the employer would meet the training threshold requirement and would need to ensure the two full time employees receive training only.

What if a supervisor or non-supervisory employee has received the training in compliance with 12950.1 within the prior two years either from a current, a prior or alternate, or a joint employer? Do they have to retake the training again?


No. Supervisors do not need to retake the training. But their new, alternate or joint employer must give them the employer’s anti-harassment policy, require them to read it, and require them to acknowledge receipt of it. This must happen within six months of the supervisor assuming their new supervisory position (or within six months of the creation of a new business or the expansion of a business that was previously not required to provide training). However, the current employer is responsible for ensuring that all supervisors have fulfilled the training requirement contained in 12950.1, which may require verifying compliance from the prior, alternate, or joint employer.

For non-supervisory employees who received harassment prevention training in compliance with 12950.1 from another employer within the prior two years, they must be required to read and to acknowledge receipt of the current employer’s anti-harassment policy. Again, the current employer will be responsible for ensuring that all non-supervisory staff have fulfilled
the training requirement contained in 12950.1, which may require verifying compliance from the prior, alternate, or joint employer.

Does DFEH have a list of approved outside training providers, or can DFEH recommend or approve an outside training provider for my company to use?

DFEH does not approve training providers. DFEH cannot offer recommendations or approvals for other training providers.

I believe I may be eligible to become a trainer; how can I verify this?

There is currently no certification requirement for qualified trainers, and DFEH is unable to provide guidance as to whether one meets the qualifications of a trainer. If you believe you meet the requirements found in 2 CCR 11024, you may choose to offer your services as a trainer.

Does a trainer who is also an employee need to receive California sexual harassment prevention training in order for their employer to be compliant?

No. An individual who is a qualified training provider according to the regulations (and who does provide the training) does not need to participate in a separate sexual harassment prevention training for their employer to be in compliance with the training requirements.

What documentation is required for those who have completed the training?

The law requires employers to keep documentation of the training it has provided its employees for a minimum of two years, including but not limited to the names of the supervisory employees trained, the date of training, the sign-in sheet, a copy of all certificates of attendance or completion issued, the type of training, a copy of all written or recorded materials that comprise the training, and the name of the training provider. Examples of tracking individual compliance include a certificate and/or a sign-in sheet that includes a verification that trainees completed the training. Documentation of the training should not be sent to DFEH but should be kept on the employer’s premises.

If I have employees located outside of California, are they required to be trained?

No. While employees located inside and outside of California are counted in determining whether employers are covered under the Act, employees located outside of California are not themselves required to be trained.

What is meant by “effective interactive training”?

Effective interactive training can include any of the following:

  • Classroom training that is in-person, trainer-instruction, whose content is created by a trainer
    and provided to a supervisor by a trainer, in a setting removed from the supervisor’s daily
    duties.
  • E-learning that is individualized, interactive, computer-based training created by a trainer and
    an instructional designer that includes a link or directions on how to contact a trainer who
    shall be available to answer questions and to provide guidance within two business days
    after the question is asked.
    • The trainer shall maintain all written questions received, and all written responses or guidance provided, for a period of two years after the date of the response.
  • Webinar training that’s an internet-based seminar whose content is created and taught by a trainer and transmitted over the internet or intranet in realtime.
  • Other “effective interactive training” and education includes the use of audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training.

If an employer utilizes a webinar as their effective interactive California Sexual Harassment Prevention training, can the training be watched in a large group at the same time?

Yes, but it is up to the employer to comply with the documentation procedures, including the following:

• An employer utilizing a webinar for its supervisors or non-supervisory employees must document and demonstrate that each supervisor and non-supervisory employee who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated with the training’s interactive content, discussion questions, hypothetical scenarios, polls, quizzes or tests, and activities.

• The webinar must provide an opportunity for all employees to ask questions, to have them answered and otherwise to seek guidance and assistance.

• For a period of two years after the date of the webinar, the employer shall maintain a copy of the webinar, all written materials used by the trainer and all written questions submitted during the webinar, and document all written responses or guidance the trainer provided during the webinar.

In addition to the California Sexual Harassment Prevention training (and corresponding process and procedures), is there anything else required?

Yes, every employer must post a poster developed by the Department regarding TRANSGENDER RIGHTS and SEXUAL HARASSMENT in a prominent and accessible location in the workplace.

Does the employer have to pay for sexual harassment and abusive conduct prevention training? Does the employer have to provide paid time for such training?

California law specifies that, “An employer…. shall provide” sexual harassment and abusive conduct prevention training. Gov. Code 12950.1(a)-(b). The Department is authorized to seek a court order that “the employer” has not complied with this requirement. Gov. Code 12950.1(f). This language makes clear that it is the employer’s – not the employee’s – responsibility to provide the required training, including any costs that may be incurred. This language also makes clear that employees may not be required to take such training during their personal time; the training must be “provided” by the employer as part of an individual’s employment.

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Two New Types of HRAs Coming for 2020

Two New Types of HRAs Coming for 2020

Two New Types of HRAs Coming for 2020

On June 13, 2019, the Departments of Labor, Health and Human Services, and the Treasury released an advance copy of a Final Rule on Health Reimbursement Arrangements (HRAs). It was published in the Federal Register on June 20, 2019. The rule expands the types of HRAs that can be offered starting in 2020.

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HRAs

Background on HRAs

An HRA is a tax-preferred health plan account for employees. Employers that choose to offer HRAs pay all the costs. The HRA is funded with employer contributions that employees can use for specific health care-related expenses. HRAs offer significant tax advantages. Contributions are tax deductible to the employer and HRA benefits are excluded from the employee’s compensation for income tax and payroll tax (e.g., FICA) purposes. HRAs are not simple, however, and must be designed and administered in accordance with complex rules under the Internal Revenue Code.

Several types of HRAs are allowed under current tax rules and those rules are not changing. The new rule adds two new types of HRAs starting in 2020: Individual Coverage HRA and Excepted Benefit HRA.

Individual Coverage HRA (ICHRA)

The ICHRA is designed for employers that either do not have a group medical plan or do not offer group coverage to some classes of employees. The key rules include:

  • Integration. ICHRAs can be used to pay individual (not group) medical insurance premiums, or Medicare premiums, and out-of-pocket costs. This means employees who are not offered group coverage at work and buy an individual policy either on or off the Exchange (or enroll in Medicare). The individual policy must comply with the Affordable Care Act (ACA) requirements. Short-term limited-duration insurance (STLDI) is not ACA-compliant and cannot be integrated with an ICHRA.
  • Nondiscrimination. Employers choosing to offer an ICHRA must do so uniformly for all employees in a class. Permissible classes include full-time versus part-time, salaried versus hourly, bargained versus non-bargained, and employees in a specific geographic area (e.g., an insurance rating area). Within a class, the employer may offer different ICHRA benefit amounts for older workers, or workers with more dependents, to account for their higher insurance premiums. Employers also will be able to offer ICHRAs to new hires who are not yet eligible for the employer’s traditional group medical plan.
  • Employer mandate. For employers that are subject to the ACA’s employer mandate (also called “play or pay”), providing ICHRAs will probably satisfy the coverage offer requirement. Whether the ICHRA also will satisfy the mandate’s requirement for affordable minimum value coverage may depend on how the ICHRA benefit amount compares to insurance premium costs in the local market. The IRS is expected to provide clarification on this matter, and on the effect of ICHRAs on Exchange premium subsidies, shortly.
  • Notices. Employees offered an ICHRA must be given a disclosure notice explaining how the ICHRA affects their ability to qualify for an Exchange subsidy (called a premium tax credit). Employees may opt not to take an ICHRA. Those accepting the ICHRA must attest to the employer that they have or will purchase an ACA-compliant individual insurance policy. For approved models, see model notice and model attestation.
  • Cafeteria plans. Another feature of the new rule is that employees may pay premiums for off-Exchange insurance on a pretax basis through the employer’s cafeteria plan (also called a § 125 plan). Cafeteria plans are prohibited from covering individual Exchange policy premiums, but the employer may amend its cafeteria plan to include premiums for off-Exchange policies. If the ICHRA benefit is too low to cover the entire premium, this arrangement will enable employees to pay some premiums with pretax dollars from their paycheck.
HRAs

Excepted Benefit HRA (EBHRA)

The second type of new HRA that will be allowed in 2020 is the EBHRA. It is very different from the ICHRA summarized above, and different from traditional HRAs. Employers will be able to offer EBHRAs only to employees who also are eligible for traditional group coverage, although actual enrollment in the group plan will not be required. Examples include all ACA-compliant group medical plans, such as major medical plans, PPOs and HMOs.

The employer may fund up to $1,800 per year for the employee’s health expenses and/or premiums for excepted benefits (e.g., dental, vision, short-term limited-duration insurance). The $1,800 limit will be adjusted for inflation after 2020. Medical insurance premiums for individual insurance, group coverage (other than COBRA), or Medicare will not be eligible under the EBHRA.

Lastly, the same employee cannot be offered both an ICHRA and an EBHRA. The ICHRA requires integration with individual ACA-compliant medical insurance and is limited to employees not eligible for the employer’s traditional group plan. The EBHRA, on the other hand, can only be offered to employees who are eligible for traditional group coverage, regardless of whether they choose to enroll.

Other Details on HRAs

In announcing the new rule, Labor Secretary Acosta stated “The HRA final rule offers millions of American workers more health coverage choices and portability.” The Secretary neglected to mention that the rule may offer more options, but only if the worker’s employer chooses to provide HRAs and the type of HRA.

As with any tax-preferred benefit, the rules are quite complex. Many questions remain and additional clarification and rules are expected from the federal regulators. In the coming months, employers and their advisors will want to consider their current health plan offerings, or their decision not to offer a group plan, and the pros and cons of traditional HRAs or the new ICHRA and EBHRA options.

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We are headquartered in Turlock, CA, with locations across the heart of California’s Central Valley, Northern California and beyond to provide a local feel to the solutions and services we provide our clients. We pride ourselves on exceeding our client’s expectations in every interaction to make sure that our client’s know how much we value and appreciate their business. Contact us today 1-209-634-2929 for your comprehensive employee benefits quote!