The Brief: Workplace Culture

Top Story: Chicago ups the ante on annual sexual harassment prevention training for Illinois employers, by mandating a new two hour time requirement for supervisors, and one hour for non-supervisory employees.

Employers of employees in Chicago must provide sexual harassment prevention training as part of a larger obligation to prevent sexual harassment, have a written policy prohibiting sexual harassment, and conspicuously display specified posters informing employees that harassment is prohibited. In the same ordinance enacting the sexual harassment training mandate, the Windy City in the U.S. state of Illinois also inserted a requirement that all employees participate in one hour of annual bystander training.

The state of Illinois currently requires employers to provide annual sexual harassment prevention training to all employees, but the state law does not require either a particular a seat time or bystander training.

The new city training mandates apply to all employers of employees who work within the geographical boundaries of Chicago, and go into effect on July 1, 2022—making the initial training deadline July 1, 2023.

Employers that violate the new policy, posting, and training laws can face fines of up to $1,000 per day that a violation occurs. These fines are separate from and in addition to penalties that may be assessed under the state training mandate.

Mandated content coverage

Chicago's new law permits employers to comply with the sexual harassment prevention training mandate either by using the State of Illinois Model Sexual Harassment Prevention Training Program (Model Training) or by establishing their own training that equals or exceeds the minimum standards of the state law, as found in Section 775 ILCS 5/2-109(B). Note that the minimum standards apply only to the content that must be covered. The seat time requirements are new and separate obligations Chicago employers must additionally meet, as discussed below.

The law does not specify what minimum standards of content must be included in the bystander training mandate, nor has Illinois or Chicago produced a model training on this topic as of the time of this writing.

Mandated seat time

The Chicago Commission on Human Relations observes that the state's hour-long Model Training "would be sufficient for the sexual harassment prevention training for employees" and promises to make available "training modules for the additional hour" of supervisor training and for the bystander training, by July 1, 2022. It is not clear at this time whether the one hour of bystander training must be completed separately, or whether it may be done concurrently with the hour for employees (and included in the two hours for supervisors) of sexual harassment prevention training. We'll keep our eyes peeled for further official guidance in the future and provide any needed updates.

Mandated recordkeeping

Chicago's new law additionally requires employers to keep "records of trainings given to each employee, and records necessary to demonstrate compliance" with the law for at least five years. Failure to keep the required records will entitle the enforcement agency to presume that the training did not occur, which employers can only rebut by "clear and convincing evidence"—a high standard of proof in civil litigation. For this reason, many employers will likely opt for training with a mechanism that documents employee completion of the mandated seat times.

Sexual harassment re-defined

Chicago's new law also amends the city's definition of "sexual harassment" to prohibit "sexual misconduct," defined as "any behavior of a sexual nature which also involves coercion, abuse of authority, or misuse of an individual's employment position." Although it's too early to anticipate how judges might interpret the new "sexual misconduct" clause in a lawsuit, it appears to add a new way to prove employer liability for sexual harassment beyond the more traditional types of harassment liability, such as quo pro quo and hostile work environment. Chicago appears to have joined other jurisdictions, like New York State and City, in making it easier for employees to prevail against employers in a sexual harassment lawsuit.

Laws to Watch

Connecticut continues consumer privacy protection trend

Connecticut has become the fifth U.S. state (after California, Colorado, Utah, and Virginia) to enact a consumer data privacy law. The new law holds certain companies responsible to safeguard consumer data they collect, and grants consumers the right to access, correct, delete and obtain a copy of personal data, and to opt out of the processing of it for certain purposes.

While four of the five state consumer privacy laws do not explicitly mandate employee training (California being the lone exception), Connecticut's new law does require covered companies to "establish, implement and maintain reasonable administrative, technical and physical data security practices." As noted in last month's issue, Colorado has a similar provision in that state's own consumer privacy law, and has recently published legislative guidance recommending that employers establish general data security training to support compliance with the law's requirement.

Golden State might mandate training on workplace violence

Cal/OSHA, the agency that regulates and enforces workplace safety in the U.S. state of California, has proposed a regulation to mandate workplace violence prevention training for employees of most employers (notable exceptions include healthcare, corrections, and law enforcement).

The proposed regulation would, if adopted, require employers to establish and provide training on an employer-specific "Workplace Violence Prevention Plan'' (Plan) to 1) safeguard workers from job-related violence; and 2) provide procedures for reporting and addressing violent incidents and any resulting injuries that do occur. The training would have to use content and vocabulary that are appropriate for the educational level, literacy, and language of employees, and cover certain workplace-violence-related definitions, as well as the general requirements applicable to every covered employer's Plan and Violent Incident Log.

The bulk of the training mandate, however, would cover the Plan (how to obtain a copy, how to participate in the Plan's development and implementation, and how to report workplace violence incidents or concerns to the employer without fear of reprisal). The regulation would also require employers to provide additional training upon identifying any new or previously unrecognized workplace violence hazard. Finally, the regulation would require employers that had a workplace violence incident in the past five years to provide additional training on job-specific workplace violence hazards, corrective measures implemented, and other employer- and worksite-specific topics related to the incident and preventing future hazards.

Employers would need to maintain certain records, including training dates, contents or a summary of the training sessions, names and qualifications of persons conducting the training, and names and job titles of all persons attending the training sessions. Employers would be required to maintain these records for a minimum of one year.

Cal/OSHA remains in the process of revising the proposed regulations, so the specifics described above may change. The agency will continue to accept public comments until July 18, 2022.

This proposed regulation also speaks to the expansion of training mandates to new areas, spanning everything from bystander intervention, to DEI and implicit bias, to this pending workplace violence training mandate.