Is Your Company Ready to Distribute its Revamped Discrimination, Harassment and Retaliation Policies (and Complaint Procedures)?
Posted March 28, 2016

Effective April 1, 2016, among other changes, California employers will face a further expanded, “affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.” Cal. Gov. Code, § 12940(k). Going forward, this affirmative duty will require employers to develop and distribute a compliant harassment, discrimination and retaliation prevention policy. According to the amendments, a compliant policy is one that is:

1. Is in writing;

2. Lists all current protected categories covered under the [Fair Employment & Housing] Act;

3. Indicates 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 the Act;

4. Creates a complaint process to ensure that complaints receive:

  • (A) An employer’s designation of confidentiality, to the extent possible;
  • (B) A timely response;
  • (C) Impartial and timely investigations by qualified personnel;
  • (D) Documentation and tracking for reasonable progress;
  • (E) Appropriate options for remedial actions and resolutions; and (F) Timely closures.

5. Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:

  • (A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
  • (B) A complaint hotline; and/or
  • (C) Access to an ombudsperson; and/or
  • (D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.

6. Instructs 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. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.

7. Indicates 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.

8. States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.

9. Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.

10. Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Does your policy fit the bill? If not, the time to get compliant is now! If your current policy is sufficient, you will still need to distribute the policy using one of the following methods:

  • 1. Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
  • 2. Sending the policy via e-mail with an acknowledgment return form;
  • 3. Posting current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;
  • 4. Discussing policies upon hire and/or during a new hire orientation session; and/or
  • 5. Any other way that ensures employees receive and understand the policies.

Note also that if your “workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language [you must] translate the policy into every language that is spoken by at least 10 percent of the workforce.”

The full text of all the FEHA amendments can be found on the DFEH website at: http://www.dfeh.ca.gov/res/docs/FEHC/FinalText.pdf.

If you have questions about the FEHA amendments, policy compliance or policy drafting or any other employment law questions, contact the employment attorneys at LightGabler for assistance.