Foon Rhee

Regs Run Amok: How can you tell if law fixes problem?

Published: Sunday, Oct. 2, 2011 - 12:00 am | Page 1E

The groping allegations dogged Arnold Schwarzenegger during the final days of his 2003 campaign for governor and got Californians talking about sexual harassment.

Sarah Reyes thought there ought to be a law.

So she introduced Assembly Bill 1825. It requires that employers with 50 or more workers provide at least two hours of sexual harassment prevention training every other year to all supervisors. The Legislature passed it in August 2004, Schwarzenegger signed it, and it took effect Jan. 1, 2005.

But is it working?

The short answer is no one really knows. The long answer is that the figures available raise doubts whether AB 1825 is achieving supporters' goals. While there are laws far more sweeping than this, it's another lesson for legislators who are confident they can pass a law to solve a problem.

Reyes wanted to prevent sexual harassment on the job. Yet, the number of workplace cases filed with the state has increased by more than 8 percent – from 3,544 in 2004-05 (the law took effect in the middle of that fiscal year) to 3,832 in 2010-11.

If supervisors are getting more and better training, and if they're sometimes the culprits, wouldn't you expect the number of cases to decrease?

Not necessarily, says Reyes.

She hasn't kept track of the law since leaving the Legislature in 2004, but says the increase could be because the training has heightened awareness of sexual harassment. Supervisors might be more "sensitive" to employees who want to file grievances, she adds.

Reyes told me that it's conceivable that complaints will never decrease because new people, who aren't as sensitive to sexual harassment, continually enter the workforce.

Come on. How, then, would you ever judge if the law is working?

Another factor could be in play. The rise in cases has stabilized since the recession hit. In good economic times, employees who are being harassed may be more likely to file a complaint, knowing they can find another job if necessary. But when times are tough, job-hopping is more difficult, so workers are less willing to complain and rock the boat.

Or so goes the theory floated by the state Department of Fair Employment and Housing, which handles sexual harassment cases.

The bottom line, however, is that the department has no idea whether AB 1825 is meeting its goals. It does not keep track of the training, and it only checks on a company's compliance after it gets a complaint from an employee there.

The agency hasn't been asked to assess the law's impact by the Legislature or anyone else, says Annmarie Billotti, its chief deputy director. Even if it were, limited staff and an antiquated data system would make such an analysis very difficult.

Law doesn't shield employers

While many employers have voluntarily provided training for years, the California Chamber of Commerce opposed the mandates in AB 1825. It objected to the time and expense of "one-size-fits-all" training on small businesses. It also criticized a provision that specified that following the law wouldn't necessarily shield an employer from lawsuits.

"California employers already struggle to comply with the nation's most strict and stringent employment laws, and face huge liability when they fail to do so," the chamber's lobbyist warned Assembly members in 2004 just before they gave final approval.

Now, the chamber is trying to help members meet the law's requirements and sort through all the courses being offered by a training consultant industry that has "expanded considerably" under the law. In-person classes cost about $85 to $100 per trainee, while online classes average $32 to $40 per employee.

That looks like the law's clearest impact – more money for training companies. It just goes to show that while business leaders complain all the time that regulations kill jobs, the reality is that they can create some as well.

As one of the biggest companies in the e-training business, ELT launched the fourth edition of its online sexual harassment training in January. It puts more emphasis on social media and on men harassing other men. The privately held San Francisco company won't release revenue figures or say how many California workers it has trained under AB 1825, but says 5 million workers across the country have taken its courses, which also include ethics and diversity training.

It doesn't talk about a success rate for its sexual harassment training. Most companies don't want to publicize improvements because that suggests how bad problems were before the training, says Ken Robinson, ELT's vice president for marketing.

The courses ask a series of questions on what is or isn't sexual harassment and how to handle it. Most of it is common sense, or at least it should be. So it makes you wonder how much time thousands and thousands of supervisors are spending on this, and how productive that is.

One other definite result of AB 1825 is that it added another section (12950.1) to the California Government Code.

In a high-profile announcement in February, state Senate leaders stood behind stacks of code books – 28,000 pages in all – to introduce Senate Bill 366. The goal: To weed out duplicative, inconsistent or outdated regulations that have no real benefit to consumers, public safety or health or to environmental protection. Regulatory reform is a hot topic because of concerns about California's anti-business reputation and because the state's 12 percent unemployment rate is well above the national average.

Yet, once the fanfare died down and the measure entered the legislative meat grinder, a Capitol maxim was proved once again: Legislators pass laws and move on. They don't go back, unless a law badly needs fixing or a vested interest wants one tweaked in its favor.

A step on regulatory reform

SB 366 never even got a committee hearing. Instead, the Legislature quietly passed SB 617. It calls for more thorough review of the costs and benefits of major regulations – but only of ones proposed on or after Nov. 1, 2013. Before then, the state Finance Department has to come up with – you guessed it – regulations to guide agencies on how to conduct those studies.

The bill – backed by the chamber, given final approval on the last day of the session and expected to be signed by Gov. Jerry Brown – doesn't come anywhere close to the "top-to-bottom" review of regulations that some legislators promised.

It is a small step in the right direction. Legislators and the public would have a better idea of the impact on jobs and businesses of major regulations – those with an estimated economic impact exceeding $50 million. Instead of relying on biased numbers from special interests, lawmakers would have more independent figures from state agencies.

One requirement is to see if there's a simpler, cheaper way to accomplish the same goal. Another is to check if a proposed regulation would duplicate or conflict with an existing one, so it's possible that current rules could be affected.

Still, you have to ask: How many unnecessary regulations will escape scrutiny and stay on the books?

You'd hope the Legislature would at least check if existing laws – and any regulations spawned to implement them – are working before passing a bunch of new ones. Or how about this: All major laws should come with an automatic sunset clause, forcing a review of them after, say 10 years, if they are to remain in effect.

And when it's often difficult to predict a law's impact, legislators should think twice before carrying any bill. Is it absolutely necessary? Is it an issue serious enough to merit their attention? Will it definitely not make the situation worse?

I don't blame the governor one bit for complaining about a "legislative machine, which is running out of control," or for being exasperated by the 600-odd bills the Legislature piled on his desk.

While he is signing some of them, 25 on Friday alone, he is occassionally attaching snarky messages. He noted that SB 769, an "urgency" measure that will allow a mountain lion to be stuffed and displayed at a Kern County museum, won overwhelming bipartisan support. "If only," he lamented, "that same energetic bipartisan spirit could be applied to creating clean energy jobs and ending tax laws that send jobs out of state."

Amen to that.

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Read more articles by Foon Rhee, Associate editor

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