The California agency tasked with enforcing the state’s anti-discrimination, anti-harassment, and anti-retaliation laws, the Department of Fair Employment & Housing (DFEH), has recently implemented new regulations that will require California employers with five or more employees to revise their workplace policies and/or employee handbooks by April 1, 2016. Specifically, the regulations require employers to say more to employees about the topics of anti-discrimination and anti-harassment than was ever required in the past. Below is a summary of the new regulations.
Effective April 1st, all of the following must be communicated to employees in a written policy:
- A list of all currently protected categories (e.g., age, race, religion, sex, disability, etc.) covered under the state’s anti-discrimination law.
- A clear statement that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in discriminatory, retaliatory, and/or harassing conduct;
- The company’s complaint-handling process that ensures all of the following:
- Confidentiality of the complaint and investigation, to the extent possible;
- A timely response to complaints;
- Impartial and timely investigations by qualified personnel;
- Proper documentation and tracking of a complaint for reasonable progress;
- Appropriate options for remedial actions and resolutions; and
- Timely closures and resolutions.
The complaint process must allow complaints to be made to an individual other than the employee’s immediate supervisor, including but not limited to the following options:
- Oral or written complaints through direct communication with a designated company representative (i.e. human resources manager, EEO officer, or other supervisor); and/or
- A complaint hotline; and/or
- Access to an ombudsperson; and/or
- The identification of the DFEH or the federal equivalent, the Equal Employment Opportunity Commission, as additional avenues for complaints.
- Supervisors must be instructed to report 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 their mandated sexual harassment prevention training.
- Employees must be informed that when the 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. Employees must also be informed that confidentiality will be kept by the employer to the extent possible (but not that the investigation will be completely confidential). In addition, the policy must state that if misconduct is found as a result of the investigation, appropriate remedial measures will be taken.
- A clear statement that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
In addition, employers with five or more but less than 50 employees should post the notice available here in a place that is conspicuous and accessible to employees. Employers with 50 or more employees should post the notice available here. Electronic posting is sufficient as long as the posting is in a place where employees would tend to view it.
The full text of the amended regulations can be found here.
For more information about the amended regulations, or if you would like assistance with drafting policies compliant with the requirements of this new law, please contact Polina Bernstein or Diana Friedland at (818) 817-7570.