Spring into Action: New Rules to Curb Workplace Harassment Become Effective April 1, 2016
March 29, 2016
Numerous amendments to the California Fair Employment and Housing Act (“FEHA”) regulations were approved by the Office of Administrative Law with an effective date of April 1, 2016. While many of the amendments simply clarify existing regulations or conform the regulations to recent statutory updates, the amendments do impose certain new requirements on California employers.
Key provisions that require immediate action by California employers include the following:
- Develop a prevention policy. Employers have an affirmative duty to develop a prevention policy aimed at creating a workplace environment free from harassment, discrimination and retaliation that:
- Is in writing;
- Lists all current protected categories covered under the FEHA;
- Indicates 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 by the FEHA;
- Creates a complaint process to ensure that complaints receive:
- the employer’s designation of confidentiality to the extent possible,
- a timely response,
- impartial and timely investigation 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 the employee to complain directly to his or her immediate supervisor, but may include reporting to a designated company representative such as a human resources manager, and/or a complaint hotline or ombudsman, and/or identification of the DFEH and EEOC as additional avenues for employees to lodge complaints;
- Instructs supervisors to report complaints of misconduct to a designated company representative such as HR so that the company can try to resolve the claim internally;
- 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 maintained by the employer to the extent possible but that the investigation will not be absolutely confidential;
- Indicates that if, at the end of the investigation, misconduct is found, appropriate remedial measures will be taken; and
- Makes clear that employees will not be retaliated against as a result of making a complaint or participating in any workplace investigation.
This policy must be disseminated by one of more of the following methods: (1) printing and providing a copy to all employees with an acknowledgement form to be signed and returned; (2) sending the policy via email with an acknowledgement return form; (3) posting current versions of the policies on the company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies; (4) discussing policies upon hire and/or during a new hire orientation session; and/or (5) any other way that ensures employees receive and understand the policies.
Any employer whose workforce at any facility or establishment contains 10% or more of persons who speak a language other than English as their spoken language must translate the policy into that language.
- Update the sex harassment prevention training for supervisors. Employers with 50 or more employees must update the mandated sex harassment prevention training program for supervisors to include information related to the negative effects of abusive conduct; the supervisors’ obligation to report harassment, discrimination and retaliation of which they become aware; the potential for individual as well as employer liability; and strategies for preventing and correcting harassing behavior.
- Update the Notice to Employees regarding “Your Rights and Obligations as a Pregnant Employee.” Formerly there were two forms of the notice for employees regarding pregnancy disability leave, one strictly for employers with less than 50 employees who are only required to provide pregnancy leave, and the second for employers with 50 or more employees who are subject to both pregnancy disability leave and California Family Rights Act (CFRA) leave requirements. Under the amended regulations, there is one Notice which includes a provision regarding additional rights under CFRA.
- Be aware of additional amendments. The amendments to the regulations also clarify and/or articulate: (1) when an employee may be personally liable for harassing a co-employee; (2) the requirement to provide training on “abusive conduct” as a component of sexual harassment training; (3) the definitions of “sex,” “gender identity,” “gender expression,” “transgender,” and “sex stereotype”; and (4) that it is no defense to a complaint of harassment based on sex that the alleged harassing conduct was not motivated by sexual desire.
The amendments also supply new definitions for several terms, which are likely to make it easier to establish joint employer liability and harder to sustain independent contractor status, and also provide new guidance regarding assistive animals, when considering their presence in the workplace as a reasonable accommodation for certain disabilities.
- Update non-discrimination and harassment policies and practices. For each group of workers who speak a language other than English as their spoken language and comprise 10% or more of your workforce at a given facility or establishment, translate the policy into that language (or those languages).
- Make sure you have and are using an updated version of the sex harassment prevention training program for supervisors.
- Make sure you have and are using an updated version of the Notice to Employees regarding “Your Rights and Obligations as Pregnant Employee” which can be found at http://www.dfeh.ca.gov/
In addition, the DFEH issued new guidance called Transgender Rights in the Workplace which can be found at http://www.dfeh.ca.gov/
Action Item: Make sure your supervisors and managers are sensitized to the issues associated with transgender employees’ rights in the workplace, and that your non-discrimination and harassment policies, practices and training take these important issues into account.