Regulators are ready to impose a truce in the fight over how to implement the state law that requires training on sexual-harassment issues for supervisors at California businesses with 50 or more employees.
The new rules would split the difference between those who argue that only person-to-person training can really deliver the message to supervisors and those who say electronic methods are effective and less costly.
Under the revised rules, training can be conducted in person, online or by Internet-based seminars, but it must take at least two hours.
The proposal would affect thousands of California businesses with 50 employees or more, which are required to provide mandatory sexual-harassment training for supervisors every two years. The new standards are also expected to influence harassment-training standards outside the state.
The stakes are high. If an employer doesn't comply with the rules and gets sued, it could open the door to punitive damages. The company may not be the only one on the hook; supervisors may be sued personally for harassment that occurs on their watch.
The new rules are scheduled for adoption by the Fair Employment and Housing Commission on Aug. 26. A public comment period closes July 21.
The new regulations are simplified and tightened, but still raise the hackles of folks on both sides of what boils down to a debate over costs and learning styles in the electronic age. One side says a trainer must be present to really get the message across; the other side argues that an interactive program can provide the same information online at a fraction of the cost.
Training fees range from an average of about $25 per person for online training to about $125 a seat for Web seminars and $2,500 for a good instructor in a small class.
"We're still opposed, but they're much improved," Sacramento attorney John Adkisson said of the new rules. "Unfortunately, they still allow it to be online."
Adkisson offers in-person sexual-harassment training programs.
"They're terrible. E-learning, in order to be effective, has to be self-paced," countered Wendell Laidley, managing director of Napa-based New Media Learning, which sells the top online program. "I've talked to all the people involved, but I'm a voice in the wilderness."
Still others suggest the revised rules are a good compromise.
"They're tightened, simplified and responsive to the concerns raised," said Garry Mathiason, a San Francisco attorney whose law firm started and remains a major investor in a company that offers online programs. "They are becoming a very functional and practical set of regulations critically needed by employers who want to follow the law."
The idea is to fashion rules that will ultimately serve as a model for the nation, added Mathiason, a member of the advisory committee convened last summer to sort out the issues raised by Assembly Bill 1825.
The bill by former Assemblywoman Sarah Reyes, a Fresno Democrat, became state law in January 2005, but the first set of draft regulations were not released until almost a year later. Written testimony submitted on the proposed rules was more than 2 inches thick by February -- and it stands to get fatter before the comment period closes.
The law requires training by experienced educators who will use practical examples to teach supervisors how to prevent and respond to harassment, discrimination and retaliation. The initial set of rules prompted outcry from all sides, as lawyers and others who stand to benefit from the law argued for their own method of training.
The revised version nails down e-learning a bit, but not enough to please one side -- and too much for the other.
E-learning programs must have trainers or educators available to answer questions in less than two business days after the question is asked.
"In my view, that's not interactive at all," Adkisson said. "At least it now clearly says people need to spend two hours."
Laidley counters that response within two days "is a little tight," and he bristles at the two-hour time clock.
"We'll never do away with the self-pacing of e-learning. As soon as they know they have to spend two hours, you'll lose them," Laidley said. "Once you control a learning process by time, you're looking at compliance by attendance, not by competence."
Revised sexual-harassment training rules
AB 1825 requires employers with at least 50 workers to provide two hours of sexual-harassment training to all supervisors. Controversial regulations to help employers figure out their responsibility under the law have been revised.
Among the proposed changes:
• The new rules still allow in-person, online or Web-seminar training, but now clarify that electronic-learning programs must take supervisors no less than two hours to complete.
• E-learning courses may include a bookmark feature that allows a supervisor to pause in the midst of individual training, so long as the actual program takes two hours.
• E-learning trainers must be available to answer questions -- and do so no more than two days after the question is asked.
• Trainers "shall" use hypotheticals or examples to illustrate course content (strengthened from "may").
• New businesses that expand to 50 employees must provide training within six months.
• There is no requirement that the 50 employees work at the same location or all work or live in California.
