In a few short weeks, California employers with 50 or more employees must change their training programs to include new material. Effective Jan. 1, anti-bullying training is mandatory for covered employers thanks to Gov. Jerry Brown’s signature on A.B. 2053 back in September.
Now is the time to revise your existing anti-harassment training program to include bullying.
Existing training mandate
California already requires employers with 50 or more employees to provide two hours of sexual harassment training to all supervisors within their first six months on the job. After that, they must receive follow-up refresher harassment-prevention training at least every two years.
What’s covered in that instruction and who must provide it? For starters, employers can’t just designate someone as the trainer and hand over some training materials. Instructors themselves must be trained before they can train others.
The sessions must include practical examples of sexual harassment and teach methods for preventing harassment and stopping it if it does occur.
Bullying added
As of Jan. 1, covered employers will be required to include prevention of “abusive conduct” in the training sessions. Examples of abusive conduct specified in the law include:
- Repeated use of insults, derogatory remarks or epithets
- Threatening, intimidating or humiliating verbal or physical conduct
- Gratuitous sabotage of a person’s work performance.
Content is vague
The law includes vague language that leaves much unsaid. Nowhere in the law does it specify what training materials should be used or how much of training time should be devoted to bullying.
Employers designing training may want to focus on civility and raise general expectations in the workplace as to what constitutes acceptable behavior while reinforcing that emotional outbursts are unacceptable in today’s office or factory setting. Name-calling, insults, demeaning comments and threats are obvious no-nos, but supervisors also have to provide honest—if sometimes painful—feedback. Drawing the line may be difficult.
Is bullying unlawful?
The new law mandates training on bullying, but does not specifically say that bullying is against the law.
In other words, the law mandates anti-bullying management training, but doesn’t authorize employees to file lawsuits alleging they were bullied. Presumably, the Legislature concluded that by training supervisors to spot, prevent and stop bullying, it would really stop. Time will tell whether the Legislature will return with a specific anti-bullying law.
What employers must do now
California employers should audit their supervisor training programs.
The first step: Consult your attorney. Under existing sexual harassment training requirements, attorneys are professionals recognized as being appropriate trainers on the law.
Your attorney can therefore provide updates to your current training materials to include anti-bullying information.
He or she may also be able to provide the training.
Remember that California law requires you to track the supervisory training you provide on sexual harassment. That requirement also applies to anti-bullying training. Training records must include 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.
Consider making some changes to your handbook. Although the law doesn’t make bullying illegal per se, it makes sense to provide handbook guidance on acceptable behavior that follows the training material.
Specify that it violates company policy to bully co-workers or subordinates and provide a way for employees to report such bullying behavior. You can use existing sexual harassment reporting mechanisms to report bullying. Remind employees that they can be disciplined for inappropriate behavior.
Employees may not be able to sue for bullying that isn’t tied to a protected characteristic. However, it’s not unusual for a bullied employee to be a member of a protected class and for the bullying to be tied to that membership. Calling women derogatory names, for example, may qualify as sexual harassment or sex discrimination as well as bullying. Demeaning a disabled employee is another example.
The equal opportunity bully who demeans everyone, insults and threatens his way to promotions and plum assignments and generally makes the office an unpleasant may still not be breaking the law. At least now, however, employers can call him on his behavior during training sessions. With any luck, that will stop or moderate his behavior. Awareness that the employer doesn’t find bullying acceptable may help.
