Two Trainings, Not One
SB 1343 compliance is a process requirement. FEHA liability is an outcome. Practices that conflate the two keep losing the same case in different rooms.
A familiar California scene. A practice gets served with a FEHA harassment suit. The administrator’s first reaction is disbelief, because the practice did all of the SB 1343 training on time, with documentation, for every employee, including the supervisors, including the per-diem hygienist who picks up two shifts a month. They did what the state said to do. Why are they being sued.
They are being sued because they have confused two things that are not the same thing.
SB 1343 is a training requirement. California employers with five or more employees have to provide one hour of harassment prevention training to nonsupervisors and two hours to supervisors, every two years. The requirement is procedural. The training was provided or it wasn’t.
FEHA — the Fair Employment and Housing Act — is a liability statute. It says the practice is liable for harassment, discrimination, and retaliation that occurs in the workplace, regardless of whether the practice held a training session. The training is, at most, evidence that the practice took reasonable steps. It is not a defense. It is barely a discount.
Practices conflate the two because the people selling training tell them the two are the same. They are not. SB 1343 compliance gets a practice out of one specific enforcement action — DFEH coming after the practice for failure to train. It does not get the practice out of a private FEHA suit. Those cases turn on what actually happened in the workplace, what the practice did about it, how the practice responded to a complaint, and whether the practice retaliated against the complainant. The training certificate is exhibit twelve.
The work that actually reduces FEHA exposure looks like this: a clear written complaint procedure that names a person other than the alleged harasser, prompt investigation, documented response, no retaliation, and an environment in which the front-desk staffer who would otherwise quit quietly feels safe enough to file. None of that is on a slide deck. All of it is on the practice.
We will write up the post-AB 749 NDA landscape in a future issue. The short version is that practices cannot do what they used to do, and the settlements people are signing without counsel are not enforceable in the way they think they are.