New Regulations May Require Policy Overhaul

The California Fair Employment and Housing Council (FEHC) enacts regulations that protect employees from unlawful discrimination, harassment and retaliation, stressing the employer’s affirmative duty to prevent such workplace misconduct.

As previously covered in New California Pregnancy Disability Leave Poster Requirements Take Effect On April 1, 2016, the FEHC amended its Fair Employment and Housing Act (FEHA) regulations effective April 1, 2016, requiring for the first time all employers with five or more employees to develop and distribute a harassment, discrimination, and retaliation prevention policy containing these mandatory provisions:

• Protected Categories: List all current protected categories covered under FEHA, including but not limited to a person’s race, color, national origin, religion, and gender.

• Prohibited Conduct: Indicate the law prohibits supervisors, managers, co-workers and third parties from engaging in prohibited conduct.

• Reporting Options: State that in addition to registering a complaint to one’s immediate supervisor, the employee may also report directly to a designated company representative (such as an HR manager or other supervisor), a complaint hotline, an ombudsperson (intermediary), and/or directly to the Department of Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC).

• Complaint Process: Ensure complaints receive confidential treatment 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.

• Supervisor Duty to Report: Instruct supervisors to report such complaints to a designated company representative, such as an HR Manager, so the company can attempt to resolve the claim internally.

• Neutral Investigation: The employer shall conduct a fair, timely and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on collected evidence.

• Remedial Measures: If at the end of the investigation misconduct is found, the company shall take appropriate remedial measures.

• Anti-Retaliation: Make clear that employees shall not be exposed to retaliation for lodging a complaint or participating in any workplace investigation.

Language Translation: Translate the policy into any language spoken by at least ten percent of the workforce at any facility.

Distribution of Written Policy: The written policy must be distributed by hard copy or email with an acknowledgment form for the employee to sign and return. Alternately, the employer may disseminate the written policy in any other way that ensures employees receive and understand it.

Covered employers should update their policies to meet the new requirements. Full compliance with these revised FEHA regulations should help prevent or promptly correct discriminatory and harassing conduct and deter frivolous lawsuits.

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth April 29, 2016