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.