Employers subject to California’s mandatory AB 1825 sexual harassment training requirement for supervisors will need to revise their programs to include prevention of “abusive conduct,” following an amendment (AB 2053) to California’s Fair Employment and Housing Act (FEHA).

AB 1825 (codified at Cal. Gov. Code § 12950.1) requires employers with at least 50 employees anywhere to provide two hours of classroom or other effective interactive training regarding sexual harassment prevention to California supervisory employees every two years (the first training deadline was Dec. 31, 2005). New supervisors must be trained within six months of being promoted or hired into a supervisory position and, thereafter, every two years. The next training deadline is Dec.  31, 2015. The amendment, which becomes effective Jan. 1, 2015, will apply to that training.

Under the amendment, “abusive conduct” means: “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. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

The amendment did not formally add “abusive conduct” as a protected category under FEHA; rather, it amended only the training requirement.

Employers also must be sensitive to discussing California’s “abusive conduct” standard without run afoul of National Labor Relations Board (NLRB) decisions under proscribing overbroad, undefined terms that allegedly restrict employees’ protected, concerted activity under the National Labor Relations Act (NLRA). Thus, it may be important to distinguish the application of the new California term from the NLRB’s case law faulting employer policies prohibiting “abusive” conduct.

Required AB 1825 training must include “information and practical guidance” regarding federal and state laws concerning the prohibition against and prevention of sexual harassment, and the remedies available to victims of such harassment. The training must be provided by “trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation,” and must include practical examples aimed at instructing supervisors. In light of the interactive training requirement, an employer cannot comply with AB 1825 by simply showing a video to employees.

Employers have to track compliance with AB 1825 by keeping training records indicating the date and type of training provided and the supervisor-trainee’s name, as well as the name of the instructor. These records must be maintained for at least two years. Employers can provide trained supervisors with a certificate of attendance and place a copy of the certificates in their personnel files for the duration of their employment plus four years post-employment.

The Department of Fair Employment and Housing can penalize employers who fail to comply with the training requirement. The law states that compliance with AB 1825 is not a defense to a sexual harassment claim and, conversely, that a supervisor’s failure to receive training is not grounds for establishing liability for harassment under the Fair Employment and Housing Act.