Review of Pros and Cons of Free DFEH Online Employee Harassment Prevention Training
Small business employers are concerned about complying with California’s new law that requires Harassment Prevention Training for all employees and supervisors of businesses with 5 or more employees.
The Department of Fair Employment and Housing (DFEH) was charged with launching a free online harassment prevention training program for employees and supervisors in time for California employers to comply with this new law. We offer a review of the free DFEH Online Employee Harassment Prevention Training, as well as Pros and Cons to consider as a Small Business Employer.
Specifically, California Government Code Section 12950.1 requires:
“(a) (1) By January 1, 2021, 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 non-supervisory employees in California.
Thereafter, each employer covered by this section shall provide sexual harassment training and education to each employee in California once every two years. New non-supervisory 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.”
California Government Code Section 12950.1
With a little more than six months to go, small business employers must consider and decide how best to comply with these new requirements. Affordability and practicality are big factors for small business employers.
With stretched resources, particularly during the pandemic, small business employers will want to carefully consider the pros and cons of the Department of Fair Employment and Housing’s (DFEH) free online, interactive Harassment, Discrimination and Retaliation Prevention Training.
Therefore, we offer the following Insights after viewing the Employee Version of the online Harassment, Discrimination and Retaliation Prevention Training to help our readers decide whether or not the DFEH harassment prevention training is the best option for them.
Subsequently, DFEH states on its website that the Supervisor Version will be launched by July 30, 2020.
Brief Summary of What Is Covered in Free DFEH Harassment Prevention Training
Timing
This one-hour Employee Harassment, Discrimination and Retaliation Prevention Training, did, indeed, take approximately one hour to complete online. It may take longer for some employees to consider and answer the questions.
Scenarios, Lessons and Questions
The audience views seventeen different scenarios of workplace interactions that may or may not be harassment, discrimination or retaliation.
Thirteen of these were audios with still photographs, and 4 were videos. Next, lessons learned, followed by interactive questions, with pop up answers upon completion.
One video, created by the NYC Commission on Human Rights, did an exceptional job of explaining gender, gender identity, gender expression and sexual orientation. You can view an excerpt of one of the videos produced by NYC Commission on Human Rights here. The scenarios included a variety of situations, covering all forms of harassment and discrimination, not just sexual harassment, including abusive conduct and bullying.
These scenarios were much better and more realistic than the overused “boss rubbing female worker’s shoulders” scenarios (that employees make fun of) commonly used by inexpensive online training companies.
Legal Definitions, Complaints and Retaliation Covered in Free DFEH Harassment Prevention Training
Legal definitions were concise and easy to follow with bullet points, skipping the typical legalese.
The Complaints and Retaliation section provided options available to employees if they become the subject of harassment, discrimination or retaliation and included contact information, applicable definitions and protected activity (such as right to file a complaint with DFEH or talk about the facts of a harassment case, even if they are subject to an Arbitration Agreement).
What Employees Should Expect from Employer
This portion of the harassment prevention training notifies employees of the legal requirements of employers to:
- Provide harassment prevention training;
- Have a written anti-harassment policy;
- Post the DFEH poster on harassment, discrimination and retaliation prevention, and;
- Distribute the harassment Fact Sheet (DFEH 185 or equivalent).
Ends with Focus on Workplace Respect
Finally, the DFEH concludes the training by reminding employees and employers that it is the organization’s workplace culture that is most important, and that each individual is responsible for making the workplace culture one of mutual respect and trust. The training ends with reflection questions and referring trainees to their supervisors or HR Department for questions.
The DFEH harassment prevention training includes 112 slides. It provides the trainee with the option to print out the Certificate of Completion with employee’s name, training topic, date and the DFEH’s logo.
Employers must keep copies of the Certificates of Completion to meet tracking and record keeping requirements.
PROS of Free DFEH Harassment Prevention Training for Employees
- Scenarios included a diverse group of protected classes, from a wide range of industries, enacting a variety of typical and less common workplace behaviors.
- Viewed at any time, accessible by computer or mobile device.
- Periodically updated by DFEH as the laws change.
- Offered in a number of languages.
- Written using short and simple sentences, with an appropriate reading level. Audio-described so that employees can listen rather than read the contents.
- Is free.
- Employee can download a Certificate of Completion with employee’s name on it, for employer’s records.
CONS of Free DFEH Harassment Prevention Training for Employees
- No handouts to download.
- Can’t save progress and return to the training. Thus, you have to sit through the training in one sitting and you lose the information if you quit and have to start over.
- If you go backwards, you have to watch everything again and can’t proceed to where you last ended.
- No opportunity to ask questions. They refer employees at the end of the training to their supervisor or HR Department.
- Not industry specific or customized for work culture.
- Does not include implicit bias training (i.e., attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner). Not yet legally required, but could be helpful.
- We would like to have seen more on bullying/abusive conduct and what makes it rise to the level of becoming illegal harassment against a protective class.
Other Issues to Consider Before Choosing the Free DFEH Harassment Prevention Training for Employees
Does the DFEH training meet the requirements of Government Code Section 12950.1 for employees? For supervisors?
Our Take
The answer is unclear as the DFEH does not yet appear to have begun the regulatory process to address the newly expanded harassment training law which applies to 5 or more employees with the former law that applied to supervisors of employers with 50 or more employees, namely the California Code of Regulations (CCR 11024). These regulations make a differentiation between “E-learning” and “Webinar” Training, for the purpose of supervisory harassment training.
E-learning vs. Webinar
The devils is in the details on this one. So, pay attention.
“(B) “E-learning” training is individualized, interactive, computer-based training created by a trainer and an instructional designer. An e-learning training shall provide a link or directions on how to contact a trainer who shall be available to answer questions and to provide guidance and assistance about the training within a reasonable period of time after the supervisor asks the question, but no more than 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.”
California Code of Regulations (CCR) 11024 (B)
Does It Matter?
(C) “Webinar” training is an internet-based seminar whose content is created and taught by a trainer and transmitted over the internet or intranet in real time. An employer utilizing a webinar for its supervisors must document and demonstrate that each supervisor 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 the supervisors an opportunity 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.”
California Code of Regulations (CCR) 11024 (C)
Must Employers Have Qualified Trainer Available to Answer Questions?
Since the DFEH Harassment Training is not offered in “real time”, it would most likely meet the definition of “E-learning”. This would require that a link be provided to a qualified trainer to be available to answer any questions or provide guidance or assistance, within no more than two business days after the question or assistance is sought.
However, this language in CCR 11024(c) is somewhat inconsistent with Government Code 12950.1 which states:
“(k”) The department shall make the online training courses available on its internet website. The online training courses shall contain an interactive feature that requires the viewer to respond to a question periodically in order for the online training courses to continue to play.
Any questions resulting from the online training course described in this subdivision shall be directed to the trainee’s employer’s human resources department or equally qualified professional rather than the department.” It does not specifically define who is qualified to provide this training.”
Gov. Code 12950.1(k)
However, CCR 11024 (B) and (C) specifically defines a qualified trainer, not only in subject matter, but also industry experience.
B) A “qualified trainer,” for purposes of this subdivision, is any person who, through a combination of training and experience, has the ability to train employees about the following:
(i) How to identify behavior that may constitute unlawful harassment, discrimination, or retaliation under both California and federal law.
CCR 11024 (B)
ii) What steps to take when harassing behavior occurs in the workplace.
(iii) How to report harassment complaints.
(iv) Supervisory employees’ obligation to report harassing, discriminatory, or retaliatory behavior of which they become aware.
(v) How to respond to a harassment complaint.
(vi) The employer’s obligation to conduct a workplace investigation of a harassment complaint.
(vii) What constitutes retaliation and how to prevent it.
(viii) Essential components of an anti-harassment policy.
(ix) The effect of harassment on harassed employees, coworkers, harassers, and employers.
Who is Qualified?
“(C) A “qualified trainer” includes, but is not limited to, an attorney admitted to the State Bar of California with at least two years of experience practicing employment law, a human resources professional with at least two years of practical experience in prevention of harassment training, investigation, and advising employers in the prevention of harassment, or any other person who has received training in the provision of prevention of harassment training from a qualified trainer.“
CCR 11024 (C)
Our Take
Most small business employers do not have qualified trainers in the HR Department or have inside legal counsel. For this reason, it is important to consider arranging to have a qualified trainer available to respond to request for answers and/or assistance after the harassment training and keep records of the answers and responses as required by law.
Additionally, the employer would want to let the employees know whom they can contact for this information.
Most California employment law firms and HR Consultants can provide these services for nominal fees. However, it will be important to make these arrangements with counsel or consultants in advance.
Would Customized, Live Harassment Prevention Training Be a Better Option?
This depends on a number of factors noted below.
Group Training Every Two Years
Most importantly, we believe employers can save time and money and gain more value by offering customized, live group training for the group as a whole initially. This would allow the trainer to engage the group in discussions on the current workplace culture, address scenarios that are specific to your industry or business, and focus on enhancing mutual respect within the group.
Training for New Hires
On the other hand, DFEH’s online harassment training is an excellent and efficient option for new hires. You’ll want to include them in the next two year cycle of group training.
Still Not Decided? Ask Yourself These Questions
- Do you have easy access to computers for individual training? Is the employee able to view training free of interruptions and noise?
- Don’t forget. Allowing employees to watch the training at home may result in paying overtime.
- Non-customized live training may be boring or irrelevant to your group.
- How difficult is it to get employees together? Would you have to close down the business for training? Could you schedule the training in shifts?
- What industry are you in? There are specific requirements for Janitorial Workers and Construction Workers.
Summary
In conclusion, the bottom line is that the DFEH harassment training is a good option for many small business employers.
Offering a Combination of Offerings
Most likely, a combination of training modalities would be best. This is because many small employers will desire to focus on building a workplace culture of mutual respect, and not just meet compliance requirements.
Please note that none of the photos in this blog come from the DFEH online training program.
Need More Help?
Finally, feel free to contact the authors if you have any further questions.
Our HR Consultant, Janice Knight, meets the requirements of a Qualified Trainer for employees who have questions resulting from online harassment training. Please contact her directly if you would like to authorize her to be available to receive questions from your employees and supervisors after participating in the DFEH harassment prevention training.
Authors: The Frog Knows, aka attorney Chuck Farrar, and Janice Knight, Senior HR Consultant
Feel free to call Chuck (530) 273-0800 or Janice (530) 273-0700 with questions about this blog.
