This is the first of several important human resources and safety issues CalWorkSafety.com and Don Dressler Consulting wish to provide information about for clients and prospects. First – every employer in California needs to update their employee handbooks or personnel manuals to revise Equal Employment and Anti-Harassment Policies.
Due to new regulations of the California Fair Employment & Housing Council, we have developed suggested new provisions for client handbooks incorporating these new requirements. It is strongly advised that any employer have an employment attorney or experienced human resources consultant review their entire handbook because very often there are other provisions that involve similar matters which must be coordinated, and also other provisions may be out of date or not be in compliance with Federal or California law.) Contact us at Don Dressler Consulting and CalWorkSafety for assistance. (www.DonDressler.com and www.CalWorkSafety.com )
On April 1, 2016, California employers will be subject to new anti-discrimination and anti-harassment regulations, as amended by the California Fair Employment and Housing Council (“FEHC”). Although the amendments are intended to conform the existing regulations to recent court decisions, the most notable addition is the requirement that covered California employers develop and distribute anti-harassment and discrimination policies with certain required elements and create formal internal complaint processes to address employee concerns. Employers should promptly review their anti-harassment, discrimination, and retaliation policies for compliance with these new regulations.
New Harassment, Discrimination, and Retaliation Policy Requirements
Covered California employers have had an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. But, employers generally had discretion in deciding how to do so. No longer. Starting April 1, 2016, a covered California employer must have a harassment, discrimination, and retaliation policy that:
- Is in writing;
- Lists all current protected categories covered under the FEHA;
- Indicates that managers, supervisors, coworkers and third parties with whom employees come into contact are prohibited from engaging in unlawful conduct under the FEHA;
- Creates a complaint process to ensure that complaints receive: (a) a designation of confidentiality, to the extent possible; (b) timely responses; (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 closure;
- Provides a complaint mechanism that permits employees to complain to someone other than his or her immediate supervisor, such as a designated company representative (including a human resources manager, EEO officer, or other supervisor), a complaint hotline, an ombudsperson, or identification of the California Department of Fair Employment and Housing (“DFEH”) and the U.S. Equal Employment Opportunity Commission as additional avenues for employees to lodge complaints;
- Assures employees that if the employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation in a manner that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected;
- States that confidentiality will be kept by the employer to the extent possible, but not that an investigation will be completely confidential;
- Instructs supervisors to report complaints of misconduct to a designated company representative, such as a human resources manager;
- Indicates that if misconduct is found after investigation, appropriate remedial measures shall be taken; and
- Confirms that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
Employers must disseminate this written policy to employees by one or more of the following methods: (1) providing a printed copy to all employees with an acknowledgement form for the employee to sign and return; (2) sending the policy via email to all employees with an acknowledgement return form; (3) posting the 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; (4) discussing the policy upon hire and/or during a new hire orientation session; and/or (5) any other way that ensures employees receive and understand the policy. Employers must translate the written policy into every language that is used as the “spoken language” by at least 10 percent of the workforce at any facility or establishment.
These dissemination requirements are in addition to employers’ continuing obligation to distribute to employees the DFEH’s brochure on sexual harassment (DFEH-185), or an alternative writing compliant with the FEHA.
Since 2004, California has required that employers with 50 or more employees provide biennial and continual sexual harassment prevention training. The regulations impose new training and record-keeping requirements for those employers.
Such training must now also:
- Instruct supervisors of their obligation to report sexual harassment, discrimination, and retaliation of which they become aware;
- Cover appropriate remedial measures to correct harassing behavior; and
- Review the definition of “abusive conduct,” explain the negative impact of abusive conduct, specifically discuss the elements of abusive conduct, provide examples of abusive conduct, and emphasize that, unless the act is especially severe or egregious, a single act shall not constitute abusive conduct. Although the new regulations still do not identify the amount of time that must be dedicated specifically to the subject of “abusive conduct,” they make clear that the subject should be covered “in a meaningful manner.”
Employers must maintain for two years all written or recorded materials that comprise the training, including copies of all webinars, all written questions and responses from webinars and e-learning, all sign-in sheets, and all certificates of attendance or completion issued, in addition to the already-required names of supervisory employees trained, the date of the training, the type of training and the name of the training provider.
The regulations track existing case law and confirm that there is no stand-alone private cause of action for failure to prevent harassment or discrimination under the FEHA. A private claimant must also plead and prevail on an underlying claim of discrimination, harassment, or retaliation.
The DFEH, however, may independently seek non-monetary preventative remedies for a violation—regardless of whether the DFEH prevails on an underlying claim for discrimination, harassment, or retaliation.
DRAFT UPDATED HANDBOOK POLICIES:
Equal Employment Policy Provision 2016:
[Company Name] is an equal opportunity employer and makes employment decisions on the basis of merit. We want to have the best available persons in every job. Company policy prohibits unlawful discrimination based and over): ancestry, color, religious creed (including religious dress and grooming practices), denial of family and medical care leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), genetic information, military and veteran status, national origin (including language use restrictions), race, sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding), gender, gender identity, and gender expression, sexual orientation and retaliation for making a complaint about discrimination or participating in an investigation of a complaint about discrimination or any other consideration made unlawful by federal, state, or local laws. It also prohibits unlawful discrimination based on the perception that anyone has any of those characteristics, or is associated with a person who has or is perceived as having any of those characteristics. Discrimination can also include failing to reasonably accommodate religious practices or qualified individuals with disabilities where the accommodation does not pose an undue hardship. All such discrimination is unlawful.
The Company is committed to compliance with all applicable laws providing equal employment opportunities. This commitment applies to all persons involved in Company operations and prohibits unlawful discrimination by any employee of the Company, including supervisors and coworkers, clients or customers or suppliers or other outside persons.
If you believe you have been subjected to any form of unlawful discrimination, submit a written complaint to your supervisor or the individual with day-to-day personnel responsibilities. Any supervisor receiving any written or other complain is to report any complaints of misconduct to a human resources manager, so the company can try to resolve the claim internally and promptly. Your complaint should be specific and should include the names of the individuals involved and the names of any witnesses. If you need assistance with your complaint, or if you prefer to make a complaint in person, contact __________________. [insert name of contact person] Confidentiality about your complaint will be kept by the Company to the extent possible, but the investigation cannot be completely confidential. The Company will immediately undertake an effective, thorough, and objective investigation and attempt to resolve the situation.
If the Company determines that unlawful discrimination has occurred, effective remedial action will be taken commensurate with the severity of the offense. Appropriate action also will be taken to deter any future discrimination. The Company will not retaliate against you for filing a complaint and will not knowingly permit retaliation by management employees or your coworkers for participating in any investigation.
To comply with applicable laws ensuring equal employment opportunities to qualified individuals with a disability, the Company will make reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee unless undue hardship would result.
Any applicant or employee who requires an accommodation in order to perform the essential functions of the job should contact a Company representative with day-to-day personnel responsibilities and discuss the need for an accommodation. The Company will engage in an interactive process with the employee to identify possible accommodations, if any, that will help the applicant or employee perform the job. An applicant or employee who requires an accommodation of a religious belief or practice (including religious dress and grooming practices, such as religious clothing or hairstyles) should also contact a Company representative with day-to-day personnel responsibilities and discuss the need for an accommodation. If the accommodation is reasonable and will not impose an undue hardship, the Company will make the accommodation.
Anti-Harassment Policy Provision – 2016
[Company Name] is committed to providing a work environment free of harassment, disrespectful or other unprofessional conduct. Company policy prohibits conduct that is disrespectful, unprofessional as well as harassment based on and over): ancestry, color, religious creed (including religious dress and grooming practices), denial of family and medical care leave, disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), genetic information, military and veteran status, national origin (including language use restrictions), race, sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding), gender, gender identity, and gender expression, sexual orientation and retaliation for making a complaint about discrimination or participating in an investigation of a complaint about discrimination or any other basis protected by federal, state or local law or ordinance or regulation. All such conduct violates company policy.
The Company’s anti-harassment policy applies to all persons involved in the operation of the Company and prohibits harassment, disrespectful or unprofessional conduct by any employee of the Company, including supervisors and managers, as well as vendors, customers, independent contractors and any other persons. It also prohibits harassment, disrespectful or unprofessional conduct based on the perception that anyone has any of those characteristics, or is associated with a person who has or is perceived as having any of those characteristics.
Prohibited harassment, disrespectful or unprofessional conduct includes, but is not limited to, the following behavior:
- Verbal conduct such as epithets, derogatory jokes or comments, slurs
- Unwanted sexual advances, invitations or comments;
- Visual displays such as derogatory and/or sexually-oriented posters, photography, cartoons, drawings or gestures;
- Physical conduct including assault, unwanted touching, intentionally blocking normal movement or interfering with work because of sex, race or any other protected basis;
- Threats and demands to submit to sexual requests as a condition of continued employment, or to avoid some other loss and offers of employment benefits in return for sexual favors;
- Retaliation for reporting or threatening to report harassment; and
- Communication via electronic media of any type that includes any conduct that is prohibited by state and/or federal law, or by company policy.
If you believe that you have been the subject of harassment or other prohibited conduct or witnessed such actions, bring your complaint to your own or any other Company supervisor, the president or the personnel administrator of the Company as soon as possible after the incident. You will be asked to provide details of the incident or incidents, names of individuals involved and names of any witnesses. It would be best to communicate your complaint in writing, but this is not mandatory. Supervisors will refer all complaints involving harassment or other prohibited conduct to the personnel administrator, investigative officer or the president of the Company. The Company will immediately undertake an effective, thorough and objective investigation of the allegations. Any information provided will be kept confidential by the employer to the extent possible, but because the Company has an obligation to deal with improper behavior it cannot assure that the investigation will be completely confidential.
If the Company determines that harassment or other prohibited conduct has occurred, effective remedial action will be taken in accordance with the circumstances involved. Any employee determined by the Company to be responsible for harassment or other prohibited conduct will be subject to appropriate disciplinary action, up to, and including termination. A Company representative will advise all parties concerned of the results of the investigation. The Company will not retaliate against you for filing a complaint and will not tolerate or permit retaliation by management, employees or co-workers.
The Company encourages all employees to report any incidents of harassment or other prohibited conduct forbidden by this policy immediately so that complaints can be quickly and fairly resolved. You also should be aware that the Federal Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing investigate and prosecute complaints of prohibited harassment in employment. If you think you have been harassed or that you have been retaliated against for resisting or complaining, you may file a complaint with the appropriate agency. The nearest office is listed in the telephone book.