What does Harassment Training Mean in Washington State?
Harassment training, within the Washington state context, refers to mandated training for employers and employees to prevent workplace harassment based on gender, sexual orientation, and other protected characteristics. This training is mandated by state law, specifically in connection with the requirement that all employers with 50 or more employees offer sexual harassment training at least once every two years.
Unlike states such as California, which mandate that employers also include training for supervisors on how to prevent and report sexual harassment, Washington state workplace harassment training is generally geared at both educating the employer on their obligations under the law and how to prevent workplace harassment, and educating employees with regards to what constitutes workplace harassment, identifying examples of workplace harassment, and what to do if they experience harassment in the workplace.
A Washington state employer is required to provide sexual harassment training for all employees. Typically , the training must include information regarding the law prohibiting sexual harassment and the applicable procedures the employer uses to address complaints. For example, the training may discuss the following:
While the Washington state training laws are not as strict as those in California, employers in Washington state should still take steps to prevent and address sexual harassment in the workplace. Ensuring all employees take the training within the proper time frame is one step. ShopFSA provides Washington state law firm employers with a variety of harassment training options including webinars, on-site training, and training videos tailored to Washington state law and workplace environment.
Supervisors and managers or anyone who is responsible for overseeing or managing employees is recommended to additionally receive California supervisor and manager harassment trainings.
Statutory Framework for Harassment Training
The legal framework governing harassment training in Washington State consists of a combination of state statutes and regulations that impose legal obligations on employers to provide harassment prevention and correction training. At the state level, the Washington Law Against Discrimination (WLAD) makes it a violation of state law for an employer, its agents, or supervisory employees to engage in any conduct, or to use any policy or practice, that interferes with or deprives a person of the right to be free from discrimination in employment because of age, sex, race, color, national origin, marital status, sexual orientation, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability. The WLAD includes prohibitions against retaliation for complaining about unlawful discrimination, and hostile environment discrimination and harassment. Further, under the WLAD, failure to take reasonable care to prevent and correct an employee’s inappropriate acts that result in harassment may also be an unfair practice.
The Washington State Legislature has enacted several laws that impose harassment training-related requirements on certain employers. Among other things, these laws mandate the following:
Recent legislative changes may impose additional harassment training requirements on Washington employers. For example, House Bill 1004, which went into effect on June 7, 2019, expands the prohibition on nondisclosure agreements (NDAs), expanding penalties for violations of the WA sexual harassment prevention law, expanding authority to bring lawsuits. As a result of this law, nondisclosure provisions in NDAs in employment, including separation agreements, and nondisclosure provisions in settlement agreements related to employment must be disclosed unless the employee is given at least five days to change his or her mind.
Who is Subject to Harassment Training?
The Washington harassment training mandate sets forth minimum harassment training requirements for public sector employers. In private industry, Washington’s new harassment training requirements would apply to companies with 50 or more employees in the state. This includes (i) temporary employees working for a Washington employer for at least six months; (ii) employees who are business owners and shareholders over 20% of a corporation; (iii) independent contractors; (iv) seasonal or hired farm workers; and (v) employees of temp agencies since the Act covers any person "acting within the course and scope of their employment."
Importantly, the term "employee" does not include individuals who are volunteers, as the definition states that an employee is "all individuals employed by the employer for compensation, in addition to all managers and supervisors by whatever title or titles they are called," unless otherwise specifically excluded by the Act.
Thus, only a few categories of workers are likely not included in the broad definition of employee for purposes of the Act: (1) independent contractors; (2) consultants; (3) partners or principle owners; and (4) unpaid interns. It is anticipated that, within the next Google search or so, there will be an extensive body of case law interpreting whether a variety of workers, like interns or independent contractors, should be classified as employees (rather than as unpaid interns or independent contractors).
At this time, public sector employers are still required to provide harassment training to all employees by January 1, 2020, but the parties are currently in negotiations.
Content and Components of the Required Training
The topics required for Harassment Prevention training vary slightly from state to state. According to the California Fair Employment & Housing Act ("FEHA"), a state-mandated employer must provide at least 2 hours of classroom or other effective interactive training and education regarding sexual harassment for supervisory employees, and at least 1 hour of the same for non-supervisory employees, with the remainder of the 5 hours of interactive training to address abusive conduct in the workplace, by January 1, 2020. Workplace training for sexual harassment victims, as part of a private cause of action, is covered by California Government Code § 12950.1, which mandates content for training for all supervisors, as follows: (2) The prevention of abusive conduct in the workplace. The training shall include information and practical examples directly related to the changing legal standards or the prevention of abusive conduct based on the specified prohibited bases [i.e., race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, citizenship, primary language, immigration status, refugee status, or protected leaves of absence, etc.]. Certification of completion shall be retained for a minimum of two years, in a manner accessible to the Department of Fair Employment and Housing.
Washington State Harassment prevention training requirements are covered in RCW 49.44.200, Harassment prevention training for employers with more than 8 employees. Washington State requires employers with 8+ employees to provide general harassment prevention training to all employees. "Harassment" includes harassment motivated by characteristics or perceived characteristics of race, color, religion, ancestry, national origin, age, sex, sexual orientation, and sensory, mental, or physical disability or medical condition. The Washington State Department of Labor & Industries provides an overview of the various training programs available online, including the following list of harassment prevention training elements: • General overview of the law regarding sexual harassment • Definition of sexual harassment • Different types of sexual harassment • Responsibilities of employees and supervisors • How to report sexual harassment • Consequences for sexual harassment and retaliation • Preventing sexual harassment • Supporting employees who report sexual harassment • Preventing retaliation • Resources for employees and supervisors • Familiarity with L&I’s Sexual Harrassment law
Frequency and Timing of Training
To effectively prevent harassment in the workplace and to ensure compliance with state regulations, training must be adequately timed in relation to covered activities and events. It is generally recommended that new hires be subject to harassment training within 90 days of employment. While the federal Office of Equal Employment Opportunity Commission (EEOC) recommends basing the training schedule on the number and types of incidents reported, general better practice is to conduct harassment training with new employees within 3-6 months of hire , both to ensure prompt initiation of the training schedule and to reinforce the anti-harassment policy to a newly hired employee as soon as the employee is given the opportunity to violate the policy.
State guidelines recommend a minimum of two hours for an initial training session, with the goal of lasting no longer than three hours. Session length will vary based on the size of the employer and sex ratio. The opening session will generally require more time to address definitions and FAQ’s, while annual refresher sessions can take as little as one hour or less once covered the previous year. If there are updates to the policy or recent incidents which warrant a review, the annual refresher session could take longer. Larger groups will require more time to accommodate group discussions and to address FAQs.
The Ramifications of Non-Compliance
Employers, businesses, and organizations that do not comply fully with Washington State harassment training requirements may face a number of serious legal and financial consequences. Harassment training is now required by Washington State law annually for managers and supervisors of non-agricultural workers in the state. These mandatory requirements are clearly outlined in WAC 162-32-060 which states:
"In addition to the general training requirements listed in subsection (1) of this section, the mandatory training for supervisors must include, at a minimum:
(a) The definitions of "sexual harassment," "sexual assault," "sex offenses," and "domestic violence" described in RCW 9.94A.030;
(b) Examples of behaviors that constitute sexual harassment to help employees understand how those behaviors can create a hostile work environment;
(c) Examples of behaviors that constitute domestic violence and sex offenses that could be considered "hostile" when committed by a supervisory employee against an employee supervised in the workplace;
(d) The federal and state laws protecting employees from discrimination for reporting sexual harassment or other violations of the law;
(e) Washington state law requirements related to mandatory reporting of sexual harassment and/or sex offenses in the workplace to law enforcement;
(f) Available resources for victims of sexual harassment, sexual assault, and domestic violence, such as the statewide crime victim service hotline and the sexual violence legal hotline."
In addition to the annual training requirements, Washington State businesses and organizations that employ eleven or more full- or part-time non-agricultural workers in the State must create a written policy prohibiting harassment, bullying, and sexual harassment as outlined in WAC 162-32-050. Moreover, all employers must provide this policy to each employee and make it readily available for review. These annual requirements are among others clarified in WAC 162-32-050 and RCW 49.44.210.
If a Washington State employer, business, or organization is found to have failed to comply with training requirements, it will face strict penalties. An investigation would be initiated as per Washington State law, and if a violation were discovered, the Department of Initiatives and Appeals could deny or withdraw that entity’s Certificate of Affirmative Action Program Compliance. This would disqualify the entity from government contracts, grants, loans, or other financial assistance for a minimum of three years from the date of a final conviction.
The financial consequences of failing to provide the required training and policy prohibitions also include the substantial cost of any civil lawsuit arising from workplace harassment that the entity may face.
Tools and Resources for the Implementation
The Washington State Department of Labor and Industries has made efforts to ensure that all employers have access to the resources they need to implement the new harassment training requirements. The Department’s website has several resources available, including a list of certified courses for both general and supervisor training. Multi-language versions of the new policy and training requirements are also available.
The EEOC is developing guidelines for the training that will be available upon implementation date . The EEOC’s guidance is expected to provide explicit suggestions for creating a program to ensure employees understand their rights, that reporting channels are available and accessible to all employees, and assurances that the policies are enforced by the employer. In addition to helping guide employers in development of training programs, the EEOC will be working with employers, nonprofits, and others to develop specific programs to support employers in this training.
Online training courses are currently available through various vendors like PowerHROnline.com as well as continued in-person presentations by various HR and legal organizations.