California employers should carefully review their harassment and discrimination policies and practices for compliance with new regulations issued by the Fair Employment & Housing Council that go into effect today, April 1, 2016. The new regulations include a series of detailed requirements for what must be included in every employer's written harassment policy, how the policy should be disseminated, and when it must be translated. Below is a summary of the new rules.
Who Must Comply? The regulations apply to all employers who employ at least one worker in California and regularly employ at least five total workers anywhere (inside or outside of California).
Drafting Requirements: Starting April 1, employers are required to adopt policies that meet all ten of the below requirements:
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The policy must be in writing. |
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The policy must list all current protected categories under California's Fair Employment and Housing Act (FEHA). |
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The policy must indicate 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 by FEHA. |
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The policy must create a complaint process for reporting discrimination and harassment to ensure that all complaints receive: |
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The policy must provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor (for example, a human resources manager, EEO officer, other supervisor, or a hotline). |
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The policy must instruct 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. |
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The policy must indicate 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. |
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The policy must state that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential. |
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The policy must indicate that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken. |
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The policy must make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation. |
Dissemination Requirements: Employers must disseminate the written policy in a manner that ensures employees receive and understand it. For example, the following are some acceptable methods:
- Printing and providing a copy to all employees with 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 that ensures all employees have read and acknowledged receipt of the policies
- Discussing policies upon hire and/or during a new hire orientation session
Translation Requirements: If 10% or more of the workplace speaks a language other than English as their first language, the employer must translate the policy into every language that is spoken by at least 10% of the workforce.
Updated Supervisor Training Guidelines and Requirements: The regulations also provide new guidelines and requirements concerning California's mandatory biennial supervisor harassment training and education. Notably, they describe how employers should explain and emphasize the negative effects of "abusive conduct," which is separate from unlawful harassment and discrimination, and which is not connected to any protected category. Abusive conduct includes "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 (including performance standards)." This mandatory topic of supervisor training was added by statute as of January 2015, and the new regulations shed light on what must actually be taught during the mandatory two-hour training sessions. For example, the instructor should explain that abusive conduct can cause a reduction in productivity and morale. The regulations describe some examples of "abusive conduct," such as "repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance."