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Now, two years after #MeToo emerged, Oregon, California and Washington have specific requirements for training and policies about harassment and discrimination. Employers can efficiently update internal policies and employee education tools by minding the similarities and differences among these state rules. Employers with employees in multiple states might need to follow some or all rules and can create material to apply to multiple states. These new rules are also precursors of what is to come as the anti-harassment laws evolve.

California

Employers now have one more year to train California employees according to the minimum requirements. Previously, employers with five or more employees in any state had to train California employees by Jan. 1, 2020. Employers scrambling to revamp training programs and comply with the deadline got a one-year stay – training must be completed by Jan. 1, 2021.  Supervisors, or anyone with authority to discipline or recommend discipline, in California require two hours of training; all other California employees get one hour of training.

There are still very specific requirements for how and by whom the employees get trained, and what topics the training will cover. The training must be interactive, discuss harassment based on gender identity, gender expression and sexual orientation, and be presented by a qualified trainer. The California regulations even go so far as to dictate the curriculum: topics to be covered include remedies available to victims, training on what to do if the supervisor is personally accused of harassment, and the limited confidentiality of the complaint process. Some of the topics are specific to California law, such as defining abusive conduct and explaining strict liability for harassment by supervisors.

Once all the initial training dates are met, employees need repeat training every two years. To prove compliance with the training requirements, employers must keep for two years copies of all materials used by the trainer, including written slides, attendance sheets, questions submitted during the seminar or webinar, and responses given by the trainer. Employers that have trained California employees this year (2019) according to the requirements above can wait two years to provide a refresher. As new employees join and move throughout the company, training should be implemented within six months of hire or start of a supervisor position. Even short-term California employees need training within the first 30 days or 100 hours of work.

And then there are the requirements for anti-harassment policies for California employees. The California Department of Fair Employment and Housing creates publications for required distribution, but the law also expects dissemination of the employer’s prevention policy. The requirements of this written policy will dictate the methods used when investigating complaints for sexual harassment. Policies must promise a timely response, an impartial investigation by qualified personnel, and documentation and tracking to ensure progress. Any employer whose workforce contains 10 percent or more of people who speak a language other than English must translate the policy into that spoken language.

Oregon

While Oregon still does not regulate requirements for sexual harassment training, effective Sept. 29, 2019, all employers must have a written harassment and discrimination prevention policy covering topics outlined in the new Oregon Workplace Fairness Act. The list of requirements is shorter than California’s, but introduces topics that are not required in California. The policy needs to provide a process for harassment reporting, include the names of two people for reporting, advise employees of the relevant statute of limitations for filing lawsuits, explain when they can refuse to sign a nondisclosure agreement, and more. There are several unique aspects to Oregon policy requirements – for instance, all employees must receive another copy of the policy upon reporting their complaint.

Washington

Washington law focuses protections only on hospitality employees, and has yet to apply these requirements to all industries. Effective Jan. 1, 2020, larger hotels in Washington are required to adopt a sexual harassment policy and provide mandatory harassment and discrimination prevention training to the employer’s managers, supervisors and employees. The requirements lack the specificity we see in Oregon and California, and as a result, employers have flexibility to use existing harassment and discrimination training. At the very least, the training should provide contact information of the federal and state agencies where employees can file employment complaints, and local advocacy groups focused on preventing sexual harassment and sexual assault. Seattle also recently passed new rules that mandate hotels in the city to prevent contact between guests accused of sexual harassment and the employee victim.

Charlotte Hodde is an attorney with Barran Liebman LLP. She represents employers on a range of employment law issues. Contact her at 503-276-2102 or [email protected].