SB 1300 and SB 1343: What California Employers Need to Know

SB 1300 and SB 1343 #metoo movement sign
SB 1300 and SB 1343 were passed in response to high-profile allegations of sexual harassment.

Out of the 1,217 bills that passed across Governor Jerry Brown’s desk, he signed 1,016 and vetoed 201.

Two of the bills signed will dramatically alter the relationship between employers and employees in regards to sexual harassment complaints and legal action taken in the wake of an employee harassment complaint.

These bills are SB 1300 and SB 1343, and they were pushed and promptly passed in large part due to the #metoo movement.

They both expand mandated harassment training and SB 1300 in particular, expands the definition of sexual harassment and offers new legal protections for employees who are harassed, similar to what California SB 396 attempted to accomplish, but taking it one step further.

We’ll go over each of these bills in detail so you know what training you need to provide to staff and what the changes to the legal code mean for your relationships with your employees.

To start, let’s briefly cover SB 1343 since that’s the most straightforward of the two.

What is SB 1343?

SB 1343 only applies to businesses who employ 5 or more people.

There already exists a 2-hour sexual harassment training requirement for managers and supervisors, but SB 1343 mandates an additional training requirement for non-managers, including temporary or seasonal workers.

Both the 2-hour training and 1-hour training must be provided to staff by January 1, 2020. Every 2 years, you need to provide 1-hour of this training to all staff again.

If you hire employees after January 1, 2020, they must take the 1-hour sexual harassment training within 6 months of working on the job.

What is SB 1300

SB 1300 is a sweeping harassment bill that applies to all California employers regardless of how many employees they have or how large or small the business is.

We’ll do our best to cover all the major points here.

First off, employers are no longer allowed to offer the following in exchange for a raise, bonus, or as a condition of employment or continued employment:

  • Require an employee to sign a release that basically says they’re not allowed to possess a claim or injury against an employer or other entity, such as a civil action, or notify governmental entities such as law enforcement.
  • Require an employee to sign a non-disparagement agreement or something similar that denies the employee’s right to expose unlawful acts in the workplace, such as sexual harassment or otherwise.

Here are the other major points you need to know:

  • Employers may be responsible for the acts of nonemployees harassing employees and other nonemployees such as interns, volunteers, and service contractors.
  • A single incident of harassment is enough to bring the case to trial and raise the issue of a hostile work environment if the harasser’s behavior has unreasonably interfered with the plaintiff’s work environment.
  • No workplace will be held to a different standard regarding sexual harassment than any other workplace.
  • Defendants in harassment cases are prohibited from being awarded attorney’s fees and costs unless the court determines that the action brought against the defendant was frivolous, unreasonable, or groundless or that the plaintiff continued to litigate after it clearly became so.

SB 1300 Bystander Training

SB 1300 takes their training a step further and authorizes employers to provide employees with bystander intervention training, which includes:

  • Information and practical guidance for bystanders to recognize harassment when it occurs.
  • The skills, confidence, and motivation to intervene in a problematic situation.
  • And resources to use if they do intervene.

What Judicial Decisions Does SB 1300 Affirm?

SB 1300 took a look at existing judicial decisions and aligned with those it favored and departed from those it rejects.

Here are the cases it approves of and used as a basis for this new legislation:

  • Harris v. Forklift Systems. In this case, Justice Ruth Bader Ginsburg stated plainly that “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”
  • Reid v. Google, Inc. In this case, the California Supreme Court rejected the “stray remarks doctrine,” because the “existence of a hostile work environment depends on the totality of the circumstances and a discriminatory remark, even if made not directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.”
  • Nazir v. United Airlines, Inc. In this case, it was observed that “hostile working environment cases involve issues ‘not determinable on paper.’”

How Can You Prepare for SB 1300 and SB 1343?

Well, you’re going to need to provide extensive harassment training to your employees, managers, and supervisors.

Which means you need an easy way to access this information. You also want to make it as simple as possible for your employees to take this training.

We can help make this happen.

We have a full library of courses, ebooks, and videos that meet harassment training guidelines, such as:

  • Sexual Harassment Prevention for Employees
  • Smart Workplaces: Sexual Harassment Prevention for Field Managers & Supervisors California AB 1825 and all 50 States
  • Harassment Prevention for Managers – State and Local Government Sector Edition

The best part is, they’re all available immediately after signing up. To claim your free trial of Enterprise Training, simply click the button below.

Experience the proven, easy-to-use, and cost-effective benefits of online training by scheduling your free online training consultation today!

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15 Tips on Writing Effective Harassment Policies

harassment policies bully poster
Writing an effective harassment policy will help keep employees safe and create a friendlier culture

Only 26% of employees believe their organization can swiftly handle workplace harassment complaints, according to the report “Reality of the Modern Workplace: Understanding Employee Empowerment.”

The report also found that 1 in 6 American employees avoid reporting an issue, most likely out of fear of repercussions.

Then again, maybe they simply don’t know what to do since 48% of employees don’t even have an employee handbook, and 76% of employees have no way of submitting an anonymous complaint.

If your agency has similar issues, it’s time to fix them.

The first step? Designing better harassment policies.

We’ll give you 15 tips for writing effective harassment policies in today’s post.

But first, let’s look at why harassment policies are so important.

The Purpose of Harassment Policies

First and foremost, effective harassment policies help employees be treated equally and feel safe in the workplace.

When employees know the behaviors that aren’t allowed in the workplace, and they know exactly how they’ll be punished if they engage in prohibited behavior, they’re less likely to harass fellow employees.

It will also protect your agency from lawsuits.

One of the first things judges look at is if agencies in a harassment suit provided adequate care, resources, and training to prevent harassment from occurring in the workplace.

And ultimately, a well-written harassment policy will help create a culture of respect and civility – dramatically lowering the instances of harassment.

15 Tips on Writing Effective Harassment Policies

Harassment policies need to be written so that people can easily identify harassment and they know precisely what will happen to them if they harass coworkers.

To help you write your own harassment policy, here are 15 tips for making it clear and effective:

  1. Expand your harassment policy beyond sexual harassment and make sure it includes race, ethnicity, age, national origin, disability, and religion.
  2. Provide a crystal clear definition of harassment and a detailed list of prohibited behavior, including harassment that could occur at work-related functions or online.
  3. Explicitly grant protection from retaliation to employees and bystanders who file harassment complaints.
  4. Describe your process for anonymously filing complaints.
  5. Let employees file complaints with someone outside of their chain of command to avoid unnecessary conflict or fear of retaliation.
  6. Ensure that you will protect the identity and confidentiality of the employees who file harassment complaints, especially if complaints can’t be filed anonymously.
  7. Allow for an impartial investigation into harassment complaints, either from within your organization or from a 3rd party.
  8. Pledge to your employees that you will take immediate corrective action when harassment occurs.
  9. Detail the specific penalties and consequences for harassing employees, including termination.
  10. Do not take any action involving an alleged victim of harassment without first receiving their consent.
  11. Include emotionally-charged language that helps your employees viscerally understand your policies and the seriousness of harassment (i.e. say “target” instead of victim and “predator” instead of perpetrator).
  12. Post your harassment policy throughout your organization, on your website, and inside your employee handbook and orientation materials.
  13. Train all managers and supervisors in appropriately handling harassment complaints, and outline their roles and responsibilities when a complaint is filed.
  14. Emphasize that employees are protected from discrimination when it comes to employment decisions, such as hiring, firing, and transfers.
  15. Require that someone in a position of authority must give employees who file harassment complaints updates about the status of their investigation and the punitive action taken against the harasser if they’re found guilty.

Want a Complete Guide to Effective Harassment Policies?

While the harassment policy tips we just gave you are helpful, they’re often not enough.

If you want to give your harassment policies a complete overhaul (or finally create your first harassment policy), then you need in-depth guides that show you how to do it.

We can give them to you.

We provide a series of books, videos, and courses on sexual and non-sexual harassment policies and best practices, such as:

  • Harassment Prevention for Employees – State and Local Government Edition
  • Harassment Prevention for Managers – State and Local Government Sector Edition
  • Investigating Workplace Harassment: How to Be Fair, Thorough, and Legal
  • The Sexual Harassment Handbook
  • The Workplace Law Advisor: From Harassment and Discrimination Policies to Hiring and Firing Guidelines: What Every Manager and Employee Needs to Know

Start using these resources and many more to design an effective harassment policy by getting your free trial of Enterprise Training below.

Experience the proven, easy-to-use, and cost-effective benefits of online training by scheduling your free online training consultation today!

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California SB 396: Here’s Everything You Need to Know (And More)

California SB 396 updated and expanded the anti-harassment training requirements of AB 1825
California SB 396 updated and expanded the anti-harassment training requirements of AB 1825

Do you know what California SB 396 is?

You should if your an employer in California.

Senate Bill 396 (SB 396) updated California’s harassment prevention law on October 15th, 2017 by amending Assembly Bill 1825.

The new amendments went into effect on January 1, 2018.

To help you quickly understand SB 396, we’ll go over exactly what amendments were made to AB 1825, what are the terms you should know, and what specifically you have to do now to comply with the law (or face the consequences).

By the end, we’ll give you a simple checklist for easily implementing these changes.

Let’s dive in.

What Does SB 396 Mean for California Government Agencies?

To answer that question, let’s make sure we understand what AB 1825 is.

AB 1825 mandates agencies with over 50 employees to provide at least 2 hours of training and education regarding sexual harassment to all supervisory employees within 6 months of assuming a supervisory position, and once every 2 years thereafter.

SB 396 makes multiple amendments to AB 1825 and further requires agencies with over 50 employees to include training inclusive of harassment based on gender identity, gender expression, and sexual orientation.

Let’s take a look at the SB 396 amendments to get crystal clear on the specific changes to the law.

What Amendments Did California SB 396 Make to AB 1825?

California SB 396 made 5 amendments to AB 1825.

We summarized those amendments for you below:

Section 1

Section 1 of SB 396 states that employers must “amend its current poster on discrimination in employment to include information relating to the illegality of sexual harassment.”

This means your new sexual harassment and discrimination posters must affirm the rights of transgender and gender-nonconforming employees.

You can obtain amended signage from the Department of Fair Employment and Housing (DFEH).

Section 2

Section 2(c) of SB 396 is what requires employers with 50 or more employees to include training that covers harassment based on gender identity, gender expression, and sexual orientation as part of the required 2 hours of training for supervisors.

Section 2 expands on this mandate and states that your sexual harassment training and education curriculum must include practical examples of harassment based on gender identity, gender expression, and sexual orientation.

You must also include “prevention of abusive conduct” as part of your training and education curriculum.

Abusive conduct is defined as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”

The section goes on to say that any “repeated infliction” of verbal abuse, physical misconduct, or sabotage of a person’s work environment can be construed as “abusive conduct.”

Section 3

Section 3 of SB 396 amends and expands section 14005 of the California Unemployment Insurance Code.

Section 3 also adds transgender and gender nonconforming individuals to the list of “individuals with employment barriers” which guarantees them access to employment “programs of rigorous and high-quality education, training, and other services” that do all of the following:

  • Align with the skills and needs of industries in the economy of the state or regional economy involved.
  • Prepare an individual to be successful in any of a full range of secondary or postsecondary education options, including apprenticeships.
  • Include counseling to support an individual in achieving the individual’s education and career goals.
  • Include, as appropriate, education offered concurrently with and in the same context as workforce preparation activities and training for a specific occupation or occupational cluster.
  • Organize education, training, and other services to meet the particular needs of an individual in a manner that accelerates the educational and career advancement of the individual to the extent practicable.
  • Enable an individual to attain a secondary school diploma or its recognized equivalent, and at least one recognized postsecondary credential.
  • Help an individual enter or advance within a specific occupation or occupational cluster.

Section 4

Section 4 and 4.5 of SB 396 authorizes the appointment of “community-based organizations that serve transgender and gender nonconforming individuals” to the California Workforce Development Board.

Section 5

Section 5 of SB 396 affirms that section 4.5 of Sb 396 will go into effect if AB 957 is approved by the Governor on or before January 1st, 2018 (which it was).

What are the Terms and Definitions You Should Know Regarding Transgender and Gender Nonconforming Individuals?

As you update your training manuals and courses, it’s important to understand the terminology of topics related to transgender and gender nonconforming individuals.

Here are some of the key definitions you’ll need to know to comply with SB 396 that come from the Fair Employment & Housing Council Regulations Regarding Transgender Identity and Expression:

  • “Gender expression” means a person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.
  • “Gender identity” means each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.
  • “Sex” has the same definition as provided in Government Code section 12926, which includes, but is not limited to, pregnancy; childbirth; medical conditions related to pregnancy, childbirth, or breastfeeding; gender; gender identity; and gender expression, or perception by a third party of any of the aforementioned.
  • “Sex Stereotype” includes, but is not limited to, an assumption about a person’s appearance or behavior, gender roles, gender expression, or gender identity, or about an individual’s ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual’s sex.
  • “Transgender” is a general term that refers to a person whose gender identity differs from the person’s sex assigned at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.”
  • “Transitioning” is a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in 2 employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.

What Rights Do Transgender Individuals Have in the Workplace?

DFEH issued guidelines for transgender rights in the workplace in 2017 – meaning, you need to include them on your posters and in your training.

Here are the highlights:

  • Employers and interviewers should not ask questions designed to detect a person’s gender identity
  • Employers should not ask questions about a person’s body or whether they plan to have surgery.
  • An employer who requires a dress code must enforce it in a non-discriminatory manner.
  • Transgender or gender non-conforming employees may not be held to any different standard of dress or grooming than any other employee.
  • All employees have a right to safe and appropriate restroom and locker room facilities. This includes the right to use a restroom or locker room that corresponds to the employee’s gender identity, regardless of the employee’s assigned sex at birth.
  • Where possible, an employer should provide an easily accessible unisex single stall bathroom for use by any employee who desires increased privacy, regardless of the underlying reason.
  • All single-user toilet facilities in any business establishment, place of public accommodation, or state or local government agency must be identified as all-gender toilet facilities.

In addition to the above guidelines, employers are required to address a transgender or gender nonconforming individual by their preferred name and pronoun, as detailed in the Fair Employment & Housing Council Regulations:

“If an employee requests to be identified with a preferred gender, name, and/or pronoun, including gender-neutral pronouns, an employer or other covered entity who fails to abide by the employee’s stated preference may be liable under the Act.

An employer is permitted to use an employee’s gender or legal name as indicated in a government-issued identification document only if it is necessary to meet a legally mandated obligation, but otherwise must identify the employee in accordance with the employee’s gender identity and preferred name.”

Quick Checklist of What You Need to Do to Comply with SB 396

To make sure you don’t get bogged down by the details and can simply enact the changes set forth by California SB 396, here’s a checklist of the changes you have to make to your training courses and manuals:

  • Update posters regarding harassment and discrimination policies
  • Update dress codes and standards
  • Train employees to use the proper terminology when discussing gender identity, gender expression, and sexual orientation
  • Train employees to use a coworker’s preferred name and pronoun
  • Train supervisors to identify and prevent harassment related to gender identity, gender expression, and sexual orientation

That about covers it for SB 396, but here’s something you should think about…

How comprehensive and up-to-date is your current harassment and discrimination training program?

An outdated program could teach your employees, supervisors, and managers information that is no longer relevant, or is even frowned upon or illegal.

The last thing you want to do is make it easier to incur a lawsuit or liability.

That’s why we created “Smart Workplaces: Sexual Harassment Prevention for Office Managers & Supervisors California AB 1825 and all 50 States.”

It’s a full-fledged sexual harassment program that covers everything you need to know about identifying and preventing sexual harassment in your office or agency.

You can check out that program and thousands more for free today.

How?

By signing up for a 14-day trial of Enterprise Training below.

Experience the proven, easy-to-use, and cost-effective benefits of online training by scheduling your free online training consultation today!

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