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Dynamex, Senate Bill 1343 and Sexual Harassment Prevention Training
As the San Diego business community continues to absorb the many implications and impacts of the Dynamex decision, one new question raised is whether “gig workers” should be receiving sexual harassment prevention training. As we have discussed, under the Dynamex decision issued by the California Supreme Court in April 2018, all workers that were formerly classified as “independent contractors” are now essentially deemed “employees” for purposes of California’s labor laws. There are some narrow exceptions, but those exceptions will not apply often. Prior to Dynamex, many businesses did not provide training to independent contractors; only to those classified as “employees.” Under the new Dynamex paradigm and under legislation proposed in Sacramento, San Diego employers may soon be required to give sexual harassment prevention training to the regular employees and to workers formerly classified as “independent contractors.” The proposed law is California Senate Bill 1343, which among other things, would extend required sexual harassment prevention training to non-supervisory employees including transient workers, migrant, seasonal farm workers, and workers working less than six months. See text of draft bill here.
SB 1343 is consistent with a trend to require regular workers and employees to receive anti-sexual harassment training. Across the country, the State of New York recently passed legislation requiring just that. Among other things, New York now mandates that ALL employers must have written anti-sexual harassment company policies and that training must be given to ALL employees AND to non-employees, such as independent contractors, unpaid interns, vendors, and others. The new rules apply even to a transient worker that is only expected to work for one day. See FAQs here.
Without question, Dynamex and pending legislation in the General Assembly mandate that your business needs to review its sexual harassment policies, prevention training, and compliance procedures. A good San Diego corporate attorney can help.
San Diego Corporate Law: What Kind of Training and How Often?
Under current California law, prevention training must occur once every two years for
- Employers with more than 50 employees
- For supervisory employees
See California Fair Employment and Housing Act, Cal. Gov. Code, § 12900 et seq. (the “Act”). The Act mandates at least two hours of prevention training and education regarding sexual harassment, abusive conduct, and harassment based upon gender. As noted, Senate Bill 1343 is pending, and the proposed law would impose these training obligations on employers with only five employees and would require a one-hour prevention training class/video to be given to non-supervisory employees.
As for the content of prevention training, the bill would require that the training have the following attributes:
- Be interactive
- Include information and practical guidance regarding the federal and state statutory provisions
- Include information about remedies available to victims of sexual harassment
- Include information on preventing abusive conduct as a component of the training and education
- Include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation
- Shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation
Under the proposed law, employees must be provided with or have the ability to print off a certificate of completion. As noted, by 2020, the proposed law would apply to seasonal, migrant, and temporary employees, or any employee that is hired to work for less than six months. Under the Dynamex decision, very likely the proposed law would also apply to those workers formerly classified as “independent contractors.” As noted, it is time to be proactive and have your company’s sexual harassment policies and procedures reviewed for compliance with existing new law and expected changes in the law.
Contact San Diego Corporate Law
For more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard was recently named as “Best of the Bar” by the San Diego Business Journal for 2018. Mr. Leonard has received that honor for the past four years. Mr. Leonard has extensive experience in drafting employee policies, employee handbooks, employment contracts, and the other contracts and agreements necessary for running your business. Mr. Leonard can be reached at (858) 483-9200 or via email.
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