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SAN FRANCISCO-While eight states have mandated some form of sexual harassment training for in-state companies, California has gone a step further by requiring it for any U.S. firm with 50 or more employees, if it has at least one supervisor based in the Golden State. The sweeping mandate and detailed requirements for training every other year, set to go into effect in early 2007, have prompted employment lawyers to warn clients with staff in California that ignoring the mandate could be held against them in any future employment litigation. “People are just starting to find out about this,” said Wendy Lazerson, an employment lawyer in Bingham McCutchen’s East Palo Alto, Calif., office. One issue left open by the statute, but resolved in proposed regulations set for final adoption by Feb. 1, 2007, is that the law applies to companies even outside of California, so long as some of its 50 or more member work force is in California, said Lazerson. The regulations have also made clear that supervisors subject to the training must be based in California for the law to apply. Remote supervisors, such as a boss in New York directing employees on the West Coast, would not be covered, she said. The state Department of Fair Employment and Housing approved its draft regulations in November but must submit to a final 30-day review by the state’s Office of Administrative Law. That process, which amounts to a technical review, is expected to be complete by Feb. 1, 2007, according to the employment department and the Office of Administrative Law. Around the country, nine other states have some mandatory form of sexual harassment training, and, of those, three apply to state employees only. An additional five states strongly encourage voluntary training, according to Christopher Cobey, an employment law specialist in the San Jose, Calif., office of San Francisco-based Littler Mendelson. “California has a relatively specific requirement and the most intricate training requirements,” Cobey said. There is a list of topics to be covered. Training has to last at least two hours and can be conducted through live trainers or interactive Internet seminars, dubbed “Webinars.” Also, the training must be repeated every two years. And it must be interactive, with employees answering questions, Cobey said. “What I am finding with clients, they are training supervisors nationwide, just for consistency,” said Lazerson. This would cover people who end up transferring to California. A particular concern for companies is that ignoring the training mandate may enable plaintiffs’ lawyers to argue that the employer’s lack of training shows a failure to take reasonable steps to prevent harassment, Cobey warned. “They will make the argument: How much more would it cost you to train that out-of-state supervisor?” he said. The employer’s defense is that the law specifically excludes out-of-state supervisors from the California mandate, he said. The legislation, Calif. Gov’t Code Sec. 12950.1, received support because lawmakers saw that anti-harassment laws had not eliminated the problem. The Legislature cited 4,231 sexual harassment complaints filed with the state Department of Fair Employment and Housing in the year prior to the passage of the bill. Maine, Connecticut and the Virgin Islands have sexual harassment training requirements. In Florida, Illinois, Pennsylvania, Texas and Utah, training laws apply just to state workers.

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