Relevant California laws:

SB 778¹ was approved by the Governor on August 30^th, 2019 and SB 530 ⁸ was approved by the Governor on October 10, 2019, amending Section 12950.1 to the California Government Code

Key items that did not change:

• SB-778 did not change the requirements for employers with more than 5 employees to train all employees every 2 years – it just extended the deadline
• Any nonsupervisory employee hired after September 30, 2018 must still be trained within 6 months of hire⁴
• Any employee who assumed a supervisory position after September 30, 2018 must be trained within 6 months of assumption of supervisory position⁴
• Any supervisor who required training prior to passage of SB 778 still requires training⁵
• SB 778 did not change the requirement for seasonal or temporary workers⁶to be trained
• It also did not change that providing harassment training can help an employer use the Doctrine of Avoidable Consequences to attempt to limit damages awarded to an employee in a harassment claim⁷

1. Change made to Section 12950.1(a) by SB 778 are in red “By January 1, 20202021, an employer having five or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees in California within six months of their assumption of a position. Thereafter, each employer covered by this section shall provide sexual harassment training and education to each employee in California once every two years. New nonsupervisory employees shall be provided training within six months of hire. New supervisory employees shall be provided training within six months of the assumption of a supervisory position. An employer may provide this training in conjunction with other training provided to the employees. The training may be completed by employees individually or as part of a group presentation, and may be completed in shorter segments, as long as the applicable hourly total requirement is met. An employer who has provided this training and education to an employee after January 1, in 2019, is not required to provide refresher training and education by the January 1, 2020, deadline. After January 1, 2020, each employer covered by this section shall provide sexual harassment training and education to each employee in California once every again until two years thereafter.” [note – a few small other changes were made to other sections of 12950.1]
2. Training that was provided must have met the sexual harassment training requirements (e.g. minimum content which must be included) to be applicable. Training thereafter must be provided every 2 years. It would appear that all employees and supervisors who are employed as of June 30th, 2020 must be trained by January 1, 2021 and that anyone employed from July 1, 2020 has 6 months to be trained.
3. The California DFEH had taken the position that any employee (supervisory or otherwise) who completed harassment prevention training in 2018 would need to receive it again in 2019, to satisfy the now-changed January 1, 2020 deadline.
4. Given there is arguably some ambiguity in SB 778 on if employees and supervisors need to be trained within 6 months of hire/promotion prior to January 1, 2021, it should be given the strictest interpretation.
5. It appears the updates in SB 778 do not change the training timeline already in effect for supervisory employees at employers with 50 or more employees and are required to receive harassment prevention training every 2 years. Therefore, employers who trained supervisors in 2017 under the prior law, known as AB 1825, should still train those employees in 2019 in order to maintain their two-year cycle.
6. Beginning January 1, 2021, temporary employees must be trained within 30 calendar days after their hire date or within 100 hours worked, whichever occurs first.
7. The Avoidable Consequences Doctrine allows employers to limit the amount of damages in harassment claims if (a) the employer took reasonable steps to prevent and correct workplace sexual harassment; (b) the employee unreasonably failed to use the employer’s harassment complaint procedures/the preventive and corrective measures that the employer provided and that the reasonable use of employer’s procedures would have prevented some or all of the employee’s harm. [note – Unlike under federal law, California does not allow complete affirmative defense, sometimes referred to as Faragher/Ellerth defense, and most harassment cases in California are not brought under federal law]. Failure to provide training by the required deadlines can lead to many negative consequences for employers (examples - being issued an Order of Compliance by DFEH; increased exposure to punitive damages in a harassment case; and potential additional scrutiny to all the employer’s practices and, therefore, subject it to a broader range of employment law violations).
8. SB 530’s primary changes were (A) 12950.1 (h)(1) was changed so the effective date for temporary workers was extended to January 1, 2021; (B) a new section was added to 12950.1 (l) which created specific provisions (e.g. allowance for piggybacking if previously trained by certain organizations, broader definition of qualified trainer, requirement for Division of Labor Standard Enforcement to develop training recommendations specific to the construction industry) for employers that employ workers pursuant to a multiemployer collective bargaining agreement in the construction industry (C) changed the number and lettering protocols within section 12950.1