Tag Archives: FEHA

NEW REGULATIONS — FEHA Regulations Clarify National Origin Discrimination

On May 17, 2018, the California Fair Employment and Housing Council published new regulations relating to national origin discrimination, which expand the definition of “national origin” and expand the list of prohibited employment practices.  These new regulations go into effect on July 1, 2018 .

National Origin Definition (2 CCR § 11027.1)

Previously, the term “national origin” was not defined under the California Fair Employment and Housing Act.  Instead, it was interpreted to simply mean “the country where a person was born” or “the country from which his or her ancestors came.”

The new regulations now provide a broad definition of the term “national origin,” which  includes the individual’s or ancestors’ actual or perceived:

  1. physical, cultural, or linguistic characteristics associated with a national origin group;
  2. marriage to or association with persons of a national origin group;
  3. tribal affiliation;
  4. membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
  5. attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
  6. name that is associated with a national origin group.

Continue reading NEW REGULATIONS — FEHA Regulations Clarify National Origin Discrimination

NEW CASE: $4.5 Million Reasons to Engage In the Interactive process (and Provide reasonable Accommodation) to your disabled employees

In a recent California case, employers nationwide are reminded of the importance of engaging in the good faith interactive process and attempting to provide reasonable accommodation to a disabled employee.  California jurors, in a special verdict, recently awarded a disabled former employee a $4.5 million verdict for violating the California Family Rights Act (CFRA) and California Fair Employment and Housing Act (FEHA) when the employer terminated the employee while she was out on CFRA leave.

The Case

In 2015, the former employee went out on medical leave (CFRA leave) for a broken arm.  Shortly after going out on leave, the former employee was diagnosed with major depression and her treating physician advised her employer that she would require more time off than the 12 weeks provided under the CFRA.

Rather than engage in the interactive process with the employee to try to find a reasonable accommodation (or extend the employee’s leave), the employer terminated the employee when her 12 weeks of CFRA leave expired.  The former employee filed a lawsuit against her employer claiming that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment.  The employee also claimed that her employer had violated FEHA by failing to engage in the interactive process with her about her disability and by failing to provide her with reasonable accommodation.

The jury agreed with the plaintiff and awarded her the $4.5 million verdict ($546,000 for back and front pay, over $1.9 million in compensatory damages and $2.6 million in punitive damages).

Take Home for Employers

While a California case, this case highlights to all employers the importance of working with employees who require accommodation for a disability (i.e. the importance of engaging in the interactive process).  This case might have been brought under California law, but there are federal laws (i.e. the Americans with Disabilities Act and Family Medical Leave Act) that impose the same requirements on employers.  Under these laws, employers are required to engage in the interactive process to determine what reasonable accommodations are necessary so an employee can perform essential job functions.

The following are important steps to follow when engaging in the interactive process with an employee:

  • Document!!!!! When an employee requests a leave of absence or a reasonable accommodation, document that request.  Also, provide the employee an acknowledgement of the request in writing, to document that the request was received.
  • Talk to the employee about the request. Sit down with the employee and discuss the request and possible accommodation(s) that the company can offer.  Request additional information from the employee (or his healthcare provider) where necessary in order to determine exactly what the employee can (and cannot) do.
  • Document (again)!!!!! After these conversations with the employee, send the employee a confirming memorandum summarizing your conversation, outlining accommodations discussed, and detailing any action items that both the employee and company need to perform in order to continue with the process.
  • Complete the company’s action items AND follow up with the employee. Be sure to complete any action items assigned to the company in the confirming memorandum.  Also, follow up with the employee to check the status of his action items.  Do not assume that the employee will simply complete them, periodically touch base with the employee.  And, as always, document both the company’s actions, but also the follow up conversations with the employee.
  • Repeat this process. This process will need to be repeated until an accommodation is reached or a determination is made that no accommodation is possible.  Remember, under the ADA (and FEHA), a leave of absence is considered a reasonable accommodation.

Remember, the interactive process is a continuing process with your disabled employees.  Just because an accommodation is reached, that does not end the employer’s obligation to engage in the interactive process.  Employers need to follow up with their employees periodically and verify that the selected accommodation is still working for the employee (i.e. enabling the employee to perform the essential functions of the position).  If it isn’t, then the company will need to start the interactive process all over again.

NEW REGULATIONS – California’s New Transgender Regulations Now In Effect

On July 1, 2017, the California Department of Fair Employment and Housing’s (DFEH) regulations concerning transgender employees went into effect.  The new regulations interpret the California Fair Employment and Housing Act’s (FEHA’s) provisions prohibiting discrimination on the basis of “gender identity” and “gender expression.”

New Definitions

The new regulations provide new definitions for the following terms:

  • “Gender expression” means a person’s gender-related appearance or behavior, or the perception of such appearance or behavior, whether or not stereotypically associated with the person’s sex assigned at birth.
  • “Gender identity” means each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.
  • “Transitioning” is a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This process may include, but is not limited to, changes in name and pronoun usage, facility usage, participation in employer-sponsored activities (e.g. sports teams, team-building projects, or volunteering), or undergoing hormone therapy, surgeries, or other medical procedures.

Clarifying Concepts

Restrooms

The new regulation clarify that employers are required to provide “equal access to comparable, safe, and adequate facilities” to all employees without regard to the sex (which is defined to include gender identity and gender expression) of the employee.  Employers are also expressly required to “permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.”

The regulations also remind employers that if they have “single-occupancy facilities” under their control, they are required to use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.

Finally, the regulations clarify that employers are not permitted to require employees provide proof of any medical treatment or procedure or to provide any identity document to use facilities designated for use by a particular gender.

Dress Codes

While employers are still permitted to impose a dress code, the new regulations clarify that it is unlawful for an employer to impose upon an applicant or employee any “dress code” (i.e. physical appearance, grooming or dress standard) which is inconsistent with an individual’s gender identity or gender expression.  In addition, the dress code must serve a legitimate business purpose and cannot discriminate based on an individual’s sex, including gender, gender identity, or gender expression.

The only exception to this prohibition is if the employer can establish business necessity for the particular dress code restriction.

Preferred Name and Identity

The new regulations add a new requirement that employers comply with an employee’s request to be identified by a certain name or gender identity.  The only exception to this requirement is if the employer is under some other legal obligation to identify the employee by his or her legal name or gender marker.

Employers are also prohibited from inquiring into an employee or applicant’s sex, gender, gender identity or gender expression.  The only exception is if the employer can establish a business necessity for such an inquiry.

Recommendations for Employers

It is recommended that all California employers review the new regulations and verify their employment practices comply with the new regulations.  Specifically, employers should consider the following:

  • Revising existing anti-discrimination policies to include express protections relating to sexual orientation, gender identity and gender expression;
  • For employers with single-user restrooms, verify that the restroom is labelled with the appropriate signage (i.e. the unisex signage);
  • Verify that any dress code policy avoids gender stereotypes and is enforced consistently; and
  • Most importantly, provide training to your managers and supervisors about the new regulations.

Hot Off The Presses — New Workplace Harassment Guidance for California Employers

To accompany the recent changes to the Fair Employment and Housing Act (FEHA) regulations (which, among other things, clarify California employers’ obligation to prevent and correct wrongful behavior), the California’s Department of Fair Employment and Housing (DFEH) recently published a “Workplace Harassment Guide for California Employers.”  This Guide is intended to provide California employers with guidance on how to structure of an effective anti-harassment program.  It also addresses the questions employers are most likely to ask when formulating and enforcing harassment policies.

Identifying the Elements of an Effective Anti-Harassment Program

The Guide first outlines the elements of an “effective anti-harassment program”, which include:

  • A clear and easy to understand written policy that is distributed to employees and discussed at meetings on a regular basis (for example, every six months). The regulations list the required components of an anti-harassment policy at 2 CCR §11023.
  • Buy in from the top. This means that management is a role model of appropriate workplace behavior, understands the policies, walks the walk and talks the talk.
  • Training for supervisors and managers (two-hour training is mandated under two laws commonly referred to as AB 1825 and AB 2053, for more information on this see DFEH training FAQs).
  • Specialized training for complaint handlers.
  • Policies and procedures for responding to and investigating complaints.
  • Prompt, thorough and fair investigations of complaints.
  • Prompt and fair remedial action.

Next the Guide addresses (step-by-step) how employers should handle a complaint of harassment or other wrongful behavior, including:

  • Giving the complaint “top priority”
  • Conducting a fair investigation into the complaint by —
    • Thoroughly interviewing with the complaining party, preferably in person.• Giving the accused party a chance to tell his/her side of the story, preferably in person.• Interviewing relevant witnesses and reviewing relevant documents.• Performing any other work that might be necessary to gather all the facts (e.g.visit the work site, view videotapes, take pictures, etc.).

      • Reaching a reasonable and fair conclusion based on the information you collected, reviewed and analyzed during the investigation.

  • Imposing limitations on the confidentiality of the investigation
  • Maintaining impartiality during the investigation
  • Using an investigator who is trained and qualified to conduct investigations
  • Making factual conclusions instead of legal conclusions;
  • Documenting evidence;
  • Handling special issues such as anonymous complaints and what to do if the target of harassment asks the employer not to do anything; and
  • Preventing and addressing retaliation.

Take Home for Employers

It is recommended that all California employers review the new guide and verify that their internal procedures for handling employee complaints of this nature align with those recommended in the Guide.

Also, the DFEH  provided a new poster and employee brochure on sexual harassment, so employers should be sure to update these items if used as part of their workplace postings.

California Court Expands Disability definition and employer’s CFRA Obligations

In a recent decision (Soria v. Univision Radio Los Angeles, Inc.), the California Court of Appeals expanded the definition of “disability” and an employer’s CFRA obligations.

In this case, the plaintiff had notified the employer that she had been diagnosed with a potentially cancerous stomach tumor and, as a result of that diagnosis, the plaintiff missed some work due to medical appointments. After the plaintiff notified the employer that she may need surgery, she was terminated. The plaintiff later filed a lawsuit against her former employer for disability discrimination and retaliation for requesting CFRA leave.

One of the key issues in the case was whether the plaintiff was “disabled” under California law (and thereby protected under the Fair Employment and Housing Act). According to the employer, since the plaintiff’s tumor was asymptomatic and did not itself interfere with her work, the plaintiff was not disabled. The Court, however, found otherwise. The Court found that the plaintiff’s action of seeking medical treatment for her medical condition, which at times caused her to miss work, did interfere with work; and work is a major life activity for FEHA purposes.   As a result, the Court held that the plaintiff was potentially disabled for purposes of California law and further found that her termination could have been discriminatory because (1) her disclosure of the tumor and need for surgery was close in time with her termination; (2) her tardiness had been a problem throughout her employment, including many years prior to the alleged incidents; and (3) the employer had given her positive performance reviews prior to the alleged incidents.

With respect to the CFRA leave, the employer argues it had insufficient notice from plaintiff to trigger CFRA leave requirements because she did not provide information concerning the duration of the leave. The Court, however, disagreed. The Court held that the plaintiff’s mention of her need for surgery was sufficient information to place the employer on notice for her need for leave and thereby obligated the employer obtain additional details about the leave, such as the duration of the leave itself.

Take Home For Employers

This case has two important “takeaways” for California employers. The first is that employee absences from work caused by medical appointments (rather than incapacity from the underlying condition) may constitute a limitation on a major life activity (work) and may support a finding that the employee is “disabled” for purposes of California law. The second is that an employee’s failure to advise the employer of the duration of his/her leave does not eliminate an employer’s CFRA responsibilities. Once notified of an employee’s need for leave, it is the employer’s responsibility to obtain sufficient information to determine whether CFRA applies.

New Lessons for California Employers Regarding the Interactive Process

In a recent court case (Thomsen v. Georgia-Pacific Corrugated, LLC), a California federal district reminds California employers of two key points when working with a disabled employee – (1) the employer’s obligation to provide reasonable accommodation to a disabled employee is ongoing and (2) receipt of a doctor’s note is not always a prerequisite to engaging in the interactive process/

The Case

In this case, the plaintiff had returned to work after shoulder surgery and had a lifting restriction. The employee was unable to lift more than 30 pounds, which rendered him unable to perform the essential functions of his position (a cut and die operator). As a reasonable accommodation, the company transferred the employee to a different position (an assistant end gluer).

However, after working in that position, the employee complained to the employer that the new position also required heavy lifting and the employee sought additional accommodation. The employer refused to provide additional accommodation without first receiving an additional doctor’s note. The employee did not provide the second note and the company ultimately terminated the employee for refusing to work overtime.

The employee then filed a lawsuit against the company claiming that the company failed to provide reasonable accommodation and failed to engage in the interactive process in violation of FEHA.

The Holding

The company attempted to defend its actions by arguing that it needed an additional doctor’s note in order to identify what other additional restrictions the employee needed to be able perform the end gluer job. The court disagreed with the company’s argument, finding instead that because the original doctor’s note provided a 30 pond lifting restriction, the company was obligated to engage in the interactive process with the employee to determine what additional lifting modifications could be made for the plaintiff without requiring a new doctor’s note.

The court also found that the employee’s failure to provide a note stating that he could not work overtime (or itemizing other restrictions) did not excuse the employer from further engaging in the interactive process with the employee. Instead, the court held that employers and employees must take a “flexible approach” to the interactive process. There are “no magic words are required to necessitate accommodation.” In fact, there are some instances where an employer would be required to at least engage in a dialogue with the employee before asking for a doctor’s note.

Lesson for Employers

This case demonstrates how important it is for employers to engage in the interactive process with its disabled employees. Employers need to remember that they need to be flexible and, sometimes, may need to think outside the box when trying to find a workable reasonable accommodation. In most cases, requiring the employee to provide a doctor’s note will be appropriate; however, there are instances, where a note may not be required (for example, where, as here, the existing restriction prevents the employee from performing the job).

Employers must remember that they must continue to engage in the interactive process with the disabled employee. As a best practice, employers should periodically “touch base” with the disabled employee to verify that the selected accommodation is still working.

Most importantly, employers must remember to carefully document all efforts it makes to engage in in the interactive process and to find a reasonable accommodation for the disabled employee.

Proactive Employers and the Interactive Process

In a recent decision, a California federal district court held that an employer might have violated its obligations under the Fair Employment and Housing Act (“FEHA”) when the employer simply told an employee to return to his doctor to obtain a note outlining additional work restrictions and failed to further engage in the interactive process with the employee absent a doctor’s note.

The Facts

In this case, the plaintiff worked as cut-and-die operator at a corrugated container plant. In 2012, the plaintiff had injured his shoulder in a workers’ compensation injury, which ultimately required surgery. The plaintiff was out of work for eight months recovering from the injury.

When the plaintiff was released to return to work, he was returned to work under restrictions. Following the interactive process, it was agreed that the plaintiff would return to a different position—one that the plaintiff felt would satisfy his work restrictions.

After working in the new position for a little while, the plaintiff advised his employer that his new position was exacerbating his condition; he requested additional accommodation. The employer responded by telling the employee that he needed to return to his doctor to obtain a note so the Company could determine whether additional restrictions were needed beyond Plaintiff’s existing restrictions.

The plaintiff never provided the note from his doctor regarding additional restrictions. Unfortunately, no one from the company followed up with the plaintiff about the new doctor’s note to verify further work restrictions.

A few months later, the plaintiff was terminated after he refused to work an overtime shift. The plaintiff later filed a lawsuit claiming, among other things, the company failed to properly engage in the interactive process with him regarding his need for accommodation.

The Company’s (failed) argument

The Company argued that it did engage in the interactive process with the employee, but that the interactive process failed when the employee failed to return the requested doctor’s note further explaining his restrictions.

The Court, however, disagreed, finding that the employer should have been more “proactive” than to simply request a doctor’s note and just “sit back” and wait for the employee to return the note. Instead, the Company had an obligation to not only follow-up with the employee about the requested note, but also to speak with the employee about his concerns.

Lesson to employers

Employers need to take the lead when working through the interactive process with their employees. This case shows that simply requesting a doctors’ note is not enough to satisfy the employer’s burden to engage in a good faith interactive process with the employee. In the event a requested note is not provided by the employee, the employer needs to follow up with the employee and request the note again. Also, depending on the circumstances, employers can explore other accommodations with the employee while waiting for the requested note. Most importantly, employers should thoroughly document all efforts to engage in the interactive process with the employee through both notes to the file and written communications with the employee. Finally, prior to terminating an employee with whom you have been engaging in the interactive process, consult with an HR Professional or a qualified employment attorney to verify that the company has “done enough” to satisfy its burden.

California: Reasonable Accommodation Required For Disability Of A Worker’s Family Member?

In a recent case (Castro-Ramirez v. Dependable Highway Express), the California Court of Appeal found that a California employer may be liable under FEHA for failing to accommodate a nondisabled employee’s request to modify his work schedule to permit him to care for a disabled family member.

The facts of the case

The plaintiff worked as a truck driver for Dependable Highway Express. When he was hired in 2010, he advised the Company that he had a disabled son who required dialysis on a daily basis and he was responsible for administering the dialysis. He requested work schedule accommodations, which was granted. The plaintiff was scheduled to work only days, which enabled him to attend to his son in the evening.

In 2013, the plaintiff got a new supervisor, who changed his work schedule to a swing shift. The plaintiff objected to the schedule change and explained to his new supervisor that the new schedule would not allow him to be home early enough in the evening to tend to his disabled son. The plaintiff request that his schedule be changed back and the new supervisor denied the request. The new supervisor then terminated the plaintiff – telling the plaintiff he “had quit by choosing not to take the assigned shift.”

The plaintiff later filed a lawsuit against the Company claiming that he has discriminated against been because of his association with his disabled family members.

The holding

The Fair Employment and Housing Act (FEHA) makes it unlawful for an employer to discriminate against a person with a physical disability, which is defined to include a perception that the person is associated with a person who has, or who is perceived to have, a physical disability. In short, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s association with another who has a disability.

Under FEHA, an employer is required to provide a disabled employee with reasonable accommodation if such accommodation will enable the disabled employee to perform the essential functions of his position. Since the definition of physical disability includes associational disability, the court concluded that FEHA creates a duty for employers to provide reasonable accommodations to an applicant or employee who is associated with a disabled person.

Take away for California employers

This case serves as a reminder to California employers that FEHA provides greater protections to employees with disabilities than those provided under the Americans with Disabilities Act (ADA). The key difference highlighted in this case – protections for persons associated with an individual with a disability.

The ADA prohibits employers from discriminating against someone because of his association with a person with a known disability, but it does not include “associational disability” in its definition of disability. Therefore, under the ADA, a person associated with a disabled person would not be entitled to reasonable accommodation.

The same is not true in California. While FEHA also prohibits employers from discriminating against someone because of his association with a person with a known disability, its protections extend further. Since FEHA considers someone associated with a person with a disability to themselves be a person with a disability, that person may be entitled to reasonable accommodation.

The take home message for California employers – when faced with a request from an applicant/employee for reasonable accommodation to care for disabled persons with whom they are associated (e.g. a disabled family member), California employers will be required to engage in the interactive process and determine whether accommodation can be granted.

It is recommended that California employers review their disability/reasonable accommodation policies and verify that the policies are drafted to include considering reasonable accommodation for associational disability.

New FEHA Regulations Also Require California Employers to Update Their PDL Notices

In addition to the policy changes that employers are required to make (discussed previously in “California Employers – Do Your Anti-Discrimination/Harassment/Retaliation Policies Meet The New Requirements?”), the new regulations also change the language in the California Pregnancy Disability Leave notice that employers are required to post.

Under the new FEHA regulations, the notice must explain the FEHA provisions that relate to pregnancy disability leave and include information about:

  • An employee’s right to request reasonable accommodation, transfer or pregnancy disability leave;
  • An employee’s obligations to provide adequate advance notice to the employer of the need for reasonable accommodation, transfer or pregnancy disability leave;
  • The employer’s requirement, if any, that the employee provide medical certification to establish the medical advisability for pregnancy disability leave, reasonable accommodation or transfer; and
  • How to contact the Department of Fair Employment and Housing to file a complaint and learn more about rights and obligations under the Act.

Employers have the option of posting either

  1. The revised notice specified in the regulations, unless it is inconsistent with the employer’s own policy, or
  2. A notice developed by the employer that is consistent with the regulatory requirements.

The DFEH has not provided an updated poster on its website, a copy of the poster can be obtained here.

Covered employers ((i.e. employers with 5 or more employees worldwide, and at least 1 in California) are required to post the revised California Pregnancy Disability Leave notice, or otherwise comply with the notice changes, in all California workplaces beginning April 1, 2016. The old version of the PDL notice must remain posted through March 31, 2016.

The notice must be posted in “conspicuous places where employees are employed.” In addition, the new PDL notice must be translated into every language that is spoken by at least 10% of the workforce, where at least 10% or more employees’ spoken language is not English.

Recommended Action for Employers

It is recommended that all California employers take the necessary steps to obtain the revised PDL notice and post the new PDL notice in all California work locations on Friday, April 1, 2016.

Please note, the revised PDL notice replaces both of the existing PDL notices on the DFEH website (“Notice A” Your Rights and Obligations as a Pregnant Employee and “Notice B” Family Care and Medical Leave and Pregnancy Disability Leave). Employers with 50 or more employees should post the Joint Notice for Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave (Form DFEH-100-21) in addition to the revised PDL notice.

California Employers – Do Your Anti-Discrimination/Harassment/Retaliation Policies Meet The New Requirements?

Starting April 1, 2016, California’s amended Fair Employment and Housing Act (FEHA) regulations go into effect. Most significantly, these new regulations state that covered California employers (i.e. employers with 5 or more employees worldwide, and at least 1 in California) “have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act” and require employers to make changes to some of their workplace policies – specifically employers’ anti-discrimination/harassment/retaliation policies and complaint reporting procedures.

Under the new regulations, California employers are now required to have a written policy against unlawful harassment, discrimination, and retaliation in the workplace. While most California employers likely already have this type of policy in their handbooks, the regulations also list certain provisions that must be included in these written policies. Specifically, employers are required to develop a written harassment, discrimination, and retaliation prevention policy that:

  • Lists all current protected categories (protected classes) covered under FEHA;
  • Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited under FEHA;
  • Creates a complaint process to ensure that complaints receive:
    • An employer’s designation of confidentiality, to the extent possible;
    • A timely response;
    • Impartial and timely investigations by qualified personnel;
    • Documentation and tracking for reasonable progress;
    • Appropriate options for remedial actions and resolutions; and
    • Timely closures.
  • Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
    • Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor;
    • A complaint hotline;
    • Access to an ombudsperson; and/or
    • Identification of the DFEH and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
  • Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
  • Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
  • States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
  • Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
  • Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Once the policy is developed, employers are required to distribute both the policy and the DFEH’s brochure entitled “Sexual Harassment: The Facts about Sexual Harassment” [Form DFEH-185] (Spanish version –Acosa Sexual: La Realidad Acerca del Acoso Sexual” [Form DFEH-185s]) to all employees in one (or more) of the following methods:

  • Providing each employee with a written copy of the policy and an acknowledgment form for the employee to sign and return;
  • Sending the policy via e-mail with an acknowledgment return form;
  • Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
  • Discussing policies upon hire and/or during a new hire orientation session; and/or
  • Any other way that ensures employees receive and understand the policies.

While we recommend that employers continue to include these policies in the employee handbook, California employers should also take steps to separately distribute these policies to employees and retain a separate acknowledgement of receipt of these policies.

In addition, under the new regulations, if an employer’s workforce contains 10% or more of employees who speak a language other than English, the employer must translate the policy into every language that is spoken by at least 10% of the workforce.

What should California employers do?

California employers need to review their existing policies (anti-discrimination/harassment/retaliation policies and complaint reporting procedures) and verify that these policies contain all of the required provisions. To the extent that required provisions are missing, employers should update these policies before April 1, 2016.

In addition, all California employers should distribute these policies and DFEH Form 185 to all of their California employees in one or more of the approved methods listed above.

Finally, California employers should verify that proper complaint and investigation procedures are in place and that employees are aware of these procedures. This includes not only educating employees about the existence of the complaint procedures, but also training supervisory employees on how to handle such complaints and training human resource professionals on how to properly address and investigate these complaints.