This is No April Fool's Joke
New regulations are no laughing matter!
California employers with more than five (5) workers (including employees and independent contractors) should take note of new requirements and clarifications that impact the workplace. The regulations take effect on April 1, 2016. In addition to amendments clarifying definitions of important terms and the application of legal standards for establishing employment discrimination claims, of particular importance are the new requirements for creating and providing access to written policies concerning discrimination and harassment. For employers who have been considering whether to prepare a written policy or employee handbook, now is the time to take the step. For others who already have put their policies and procedures in writing, the changes should lead to an examination of their current policies and make any necessary revisions.
To facilitate the public policy making it unlawful for any employer to fail to take all reasonable steps needed to prevent harassment and discrimination in the workplace, embodied in California Government Code section 12940(k), the Department of Fair Employment and Housing (“DFEH”) issued new regulations that expanded covered employers’ obligations beyond the requirement to distribute the DFEH approved brochure regarding harassment (DFEH-185) or an acceptable alternative, to require the employer to “develop a harassment, discrimination, and retaliation prevention policy.” 2 CCR 11023(b). Under the newly effective regulations, this policy must:
1. Be in writing;
2. List all categories currently protected under the Fair Employment and Housing Act (“FEHA”);
3. State that supervisors, managers, coworkers, and third parties with whom the employee contacts are prohibited from engaging in conduct prohibited by FEHA;
4. Create a complaint process for employees to follow that ensures that all complaints receive (i) a designation of confidentiality (to the extent possible); (ii) a timely response; (iii) an impartial and timely investigation by person(s) qualified to make such an investigation; (iv) documentation and tracking to keep reasonable progress; (v) appropriate option for remedial actions and resolutions; and (vi) timely closures.
5. Provide a mechanism for employees to complain to someone other than the employee’s immediate supervisor [N.B. Such a mechanism shall include (but not be limited to) direct communication with a designated representative of the company, and/or a complaint hotline, and/or identification of DFEH and the EEOC as additional avenues for employees to lodge complaints, and/or access to an ombudsperson.];
6. Instruct supervisors to report any complaints of misconduct to a designated company representative to enable the company to attempt to resolve the claim internally;
7. Inform employee that when employer receives an allegation of misconduct, it will conduct an investigation that will be fair, timely, and thorough so that all parties will receive appropriate due process and will reach reasonable conclusions based on the evidence collected during that investigation;
8. State that confidentiality will be kept by the employer to the extent possible without indicating that the investigation will be completely confidential;
9. Indicate that if the investigation determines that misconduct occurred, appropriate remedial measures will be taken;
10. Make clear that employees shall not be exposed to retaliation as a result of either lodging the complaint or participating in any workplace investigation;
11. Be accessible to all employees in their spoken language, provided that language is spoken by at least 10 percent of the employer’s workplace [N.B. Thus, any employer with less than ten (10) employees of which one speaks a language that is not English must translate the written policy into that employee’s spoken language.]
The new DFEH regulations recognize that different employers stand on different rungs of the technological ladder and require dissemination of the required written policy based on methods accordingly. The employer may distribute the policy to its employees by printing it out in hard copy and giving it to the employees with an acknowledgment form for the employees to sign and return. The policy can also be distributed electronically via e-mail with an acknowledgment form. For the more technologically advanced, the policy can be posted on a company intranet with a tracking system that ensures that all employees have read and acknowledged receipt of the policy. Employers are also encouraged to discuss the policies upon hire and/or during a new hire orientation session.
By now you may be asking yourself, “So now what should I do?”
First, understand that the DFEH has the right to ensure compliance with the new regulations through enforcement actions against a covered employer. This right to enforcement is not extended to private plaintiffs. Plaintiffs cannot impose liability on employers for failure to prepare and disseminate the written policies required; rather, they must establish the underlying discrimination, harassment, or retaliation claim.
Second, determine whether you are a covered employer. Keep in mind that the law applies to employers who have five (5) people working for them. This total includes employees and independent contractors, whether or not these employees and/or independent contractors located outside California. Failure to correctly count the number of “employees” can be an expensive mistake.
Third, determine whether you have a written discrimination, harassment, and retaliation prevention policy in place already. If you do, update the policy to meet the new requirements. If you do not have such a written policy, have one drafted immediately ensuring that the policy includes the language and procedures identified in the new regulations.
Fourth, distribute the revised or new written policy to all employees in accordance with the means set forth in the regulations.
Fifth, train your managers and other staff members how to comply with the updated or new policy.
As with any legal issue that impacts your business, you should consult directly with a competent attorney to help address your particular situation.