After a lengthy period of public comment and several revisions, California’s Fair Employment and Housing Council finally adopted amendments to the California Fair Employment and Housing Act (FEHA) regulations. The amendments, which went into effect on April 1, 2016, generally reinforce existing law but also impose several new and detailed requirements for employers.
Requirements for harassment, discrimination and retaliation policy:
As of April 1, every California employer must have a harassment, discrimination, and retaliation policy that:
- Is in writing;
- Lists all current protected categories under the California FEHA (race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age for individuals over 40, military and veteran status, and sexual orientation);
- Specifies that employees are protected from illegal conduct from any workplace source, including third parties who are in the workplace;
- Creates a confidential complaint process that ensures a timely response, impartial investigation by qualified personnel, documentation and tracking, appropriate remedial actions and resolutions, and timely closure;
- Informs employees about several different avenues (other than to a direct supervisor) for reporting a complaint and allows employees to have direct communication with a designated company representative, such as a human resources manager or other reliable company personnel;
- Requires supervisors to report any complaints of misconduct to a designated company representative; and
- Makes clear that employees will not be exposed to retaliation as a result of making a complaint or participating in any workplace investigation.
Under the new regulations, employees can be held personally liable for unlawful harassment of coworkers, regardless of whether an employer “knew of or should have known” of the harassment. In addition, the FEHA regulations now expressly state that employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct in the workplace, and while an employer may want to encourage written complaints, an employer cannot require them. Employees must be free to complain either in writing or verbally, which could create a significant problem for employers who seek to defend against a harassment case by maintaining that the employee never actually complained of harassment.
The regulations also impose new communication and distribution rules. For instance, the regulations require that “[a]ny employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.” Employers must distribute policies using one or more of the following methods:
- Printing and providing a copy to all employees with an acknowledgment form for employees to sign and return;
- Sending the policy via email with an acknowledgment return form;
- Posting current versions of the policies on a company intranet with a tracking system to ensure that all employees have read and acknowledged receipt of the policies;
- Discussing the policies upon hire and/or during a new hire orientation; or
- Any other means that ensures employees receive and understand the policies.
The new regulations have also imposed new training requirements for employers. In addition to requiring that California employers with 50 or more employees provide two hours of sexual harassment prevention training to all supervisors within six months of hire or promotion and every two years thereafter, such covered employers must also instruct supervisors on abusive misconduct. As a component of anti-harassment training, employers must explain the negative effects that abusive conduct has on the victim and others in the workplace, such as a reduction in productivity and morale. The training must also explain that abusive conduct includes any conduct undertaken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests (which include performance standards). Examples of abusive conduct would include repeated infliction of verbal abuse (such as the use of derogatory remarks, insults, epithets, and verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating) or a sabotage of another co-worker’s work performance. Employers should keep records of all training for a minimum of two years. The records should include a complete set of all training materials, lists of attendees, names of training providers, dates of the training sessions, sign-in sheets, and copies of all certificates of attendance or completion.
While an employee does not have a standalone private right of action against an employer who fails to comply with the FEHA regulations, a failure to comply may be probative in determining whether an employer has failed to take all reasonable steps to prevent discrimination and harassment. In addition, the Department of Fair Employment and Housing may independently seek nonmonetary preventative remedies for such failures. Employers should therefore ensure that their discrimination, harassment, and retaliation policies, as well as all other related training, recruiting, and other materials are in compliance with the new regulations.
Additional posting rules:
Employers should also be mindful of the new posting rules under the amended FEHA regulations. In the past, employers with five to 49 employees posted a Pregnancy Disability Leave (PDL) notice, referred to as “Notice A” while employers with 50 or more employees posted a combined California Family Rights Act (CFRA) and PDL notice. Under the amendments, employers with five or more employees must now post the PDL notice titled “Your Rights and Obligations as a Pregnant Employee.” Employers with 50 or more employees must post the CFRA notice titled “Family Care and Medical Leave (CFRA Leave) and Pregnancy Disability Leave.”
Like the harassment policy regulations, the notice must be translated into every language that is spoken by at least 10% of the workforce. If an employer fails to provide reasonable advance notice, it is precluded from taking any adverse action against the employee, including denying a reasonable accommodation, transfer or pregnancy disability leave for failure to provide the employer with adequate advance notice prior to a request for reasonable accommodation, transfer or pregnancy disability leave.