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SB 96 Penalties Compliance Laws Aren’t Optional Anymore

7 Jul

Well, we have talked to you about California’s new regulations and deadlines previously. Now California has published a Budget Trailer Bill called SB 96 that went into effect on July 1, 2017 – and violations are also effective after July 1, 2017.

SB 96 adopts new, far higher penalties for general and regulatory violations of Cal/OSHA as well as repeat and willful violations. These penalties are based on mandates from the 2016-2017 Federal budget.

While Cal/OSHA penalties are the highest in the nation (much higher now than Federal OSHA General violations) they are most often issued for violations for written safety plans, (IIPPs), heat illness regs, and failure to report serious injuries (previously $7,000 are now increasing to $12,471).

SB 96 Penalties Apply to: Cal/OSHA Posting, Recordkeeping & Notice Requirements

This law also increases Minimum/Maximum Penalties For Repeat & Willful Violations:

  • The new Minimum is now $8.908
  • The new Maximum increases from $70,000 to $124,709 – a 78% increase
  • And, in January 1, 2018 the maximum penalties will increase again – caused by indexing with the Consumer Price Index, and annually thereafter.

In addition, this law states that “No person shall discharge or in any way discriminate against an employee for reporting a work-related fatality, injury or illness or request access to occupational injury or illness reports.”

Penalties for serious violations other than repeat or willful violations are not included in this change  which requires issuing notice and a change to the California Code of Regulations (anticipated to occur in the coming months.)

Why Does All This Matter?

Every Employer Must Do These Things:   

1)    Review your Safety Practices – ensure you have:
  1. A current Illness & Injury Prevention Plan
  2. A current Heat Illness Prevention Plan (including employee safety training for outdoor employees)
  3. Regularly performing and keeping records of Hazard Inspections
  4. Written Records of Safety Training
2)    Review other Cal/OSHA Requirements, such as:
  1. Tractor or fork lift rules and training
  2. Hazardous communications plans and training

Additional Budget Trailer SB 96 Bill Provisions:

  • Extends the period from 60 days to one year for the Labor Commissioner to accommodate investigation of retaliation claims
  • Provides for attorney’s fees for the Labor Commissioner in prevailing in enforcement actions related to retaliation claims
  • Prohibits (with certain exceptions) employers from introducing as evidence in an administrative proceeding certain records that were not provided pursuant to a request by the Labor Commissioner
These Cal/OSHA regulations matter to every employer in California. Ignorance of them will not prevent your company receiving heavy fines for non-compliance. That’s why it is very important for employers to understand these laws and begin implementing programs in their company to avoid ALL Compliance problems.
Cal Work Safety understands the SB 96 Bill. Contact our team of experts…. We know the latest regulations and can help you implement internal programs to keep you compliant and safe from huge penalties.
Call: 949-533-3742 or email: DonDressler1@hotmail.com 

Celebrate National Safety Month This June

5 Jun
Join the National Safety Council (NSC) and thousands of organizations across the country as we work to raise awareness of what it takes to Keep Each Other Safe. Observed annually in June, National Safety Month focuses on reducing leading causes of injury and death at work, on the road and in our homes and communities.

Week 1: Stand Up to Falls

Home is the place where we feel most safe, so it may come as a surprise to hear that falls in the home are one of the leading causes of injury-related death in the U.S., second only to poisoning. Falls are the most common cause of traumatic brain injuries, including concussions.

Eliminating tripping hazards
Prevent falls at home—and at work—by removing the sources of tripping:
  • Secure electrical and phone cords away from walking areas, such as hallways or in front of your desk
  • Use non-skid rugs and be sure to tape them down to prevent rolling
  • Keep drawers and cabinets closed when you’re not using them
  • Wear proper footwear, paying special attention to outdoor conditions
  • Clean up any spills immediately and include warning signage if necessary
  • Refrain from walking while distracted – stay focused on your surroundings
  • Ensure there is adequate lighting in your workspace
  • Don’t carry more than you can handle—large loads can obstruct your vision and affect your balance
Preventing falls in your bathroom
Falls can happen anywhere, but in your home, the bathroom is one of the most dangerous places. According to the CDC, about 235,000 people over age 15 visit the emergency room each year due to a bathroom related-injury. Older adults are especially susceptible. According to the National Institute on Aging, 80 percent of senior falls happen in the bathroom due to slippery floors and surfaces.
Keep loved ones of every age safe:
  • Place a non-slip mat both inside and outside of the tub
  • Plug in nightlights in and around the bathroom for increased visibility
  • Clean up any condensation or puddles on the  oor
  • Place non-slip decals on the bottom of your shower or tub
  • Keep shampoo, soap and other bath products higher up to avoid bending
  • Install grab bars by the toilet and in or near the shower and tub to assist older adults
  • Make sure the bathroom door swings outward in case of a fall
Make your home safer by starting at the source. Remove tripping hazards around your home and ensure your bathroom is slip-free to eliminate the risk of falling.

Week 2: Recharge to Be in Charge (Focusing on Fatigue)

Like many Americans, you might feel that you’re not getting enough sleep. The CDC reports that 1 in 3 adults don’t get enough sleep. It is also estimated that 37 percent of the U.S. workforce is sleep deprived. We need proper sleep to recharge our stamina, face the day and avoid injuries at home and at work.

Getting good sleep
To be alert, well-rested and at your best, follow these tips:
  • Get 7-9 hours of sleep every day
  • Create and follow a sleep schedule. Go to bed and wake up at the same time every day—even on weekends.
  • Eliminate unnecessary light
  • Keep your bedroom temperate – neither hot nor cold
  • Make sure your bed and pillows are comfortable and support restful sleep
  • Avoid eating right before bed
  • Remember that bedtime is for sleeping, not reading or watching TV
  • Avoid using electronic devices before bed which can inhibit sleep
Dangers of Sleep Deprivation
We all have busy lives and sleep is often the first thing many of us cut back on to accommodate our schedules. In the long run, this can be dangerous. Sleep deprivation has been shown to raise the risks of depression, obesity and heart disease, and has an adverse effect on reproductive health. Lack of sleep can also lead you to experience short bursts of sleep lasting anywhere from a fraction of a second or up to 30 seconds, known as microsleep. Individuals who experience microsleep lose awareness and consciousness during the episode, which can be dangerous especially on the road.
  • Plan to take regular rest breaks and rotate drivers when travelling long distances
  • Avoid alcohol and medications that may make you drowsy while driving
  • If you feel drowsy, pull over when it is safe to do so
  • To combat drowsiness, have a cup of coffee or caffeinated drink and stretch your legs by taking a short walk
  • If you need more rest, take a quick nap if it is safe to do so
  • If you are too tired to continue driving even a er a break, don’t drive. Stay at a hotel or call someone—a loved one, friend or even a cab or ride-sharing service—to get you to your destination safely
Don’t get sidelined by fatigue. Get plenty of sleep to recharge and stay healthy and avoid dangerous situations like driving when drowsy.

Week 3: Prepare for Active Shooters

Preparing for the worst can be difficult. Nobody wants to think about being involved in a situation with an active shooter – they can be unpredictable and unfold quickly. Because an active shooter behaves erratically, they have no pattern and their victims are random—being prepared can be your best defense.

Responding to an active shooter situation
Active shooters can appear in public places such as movie theaters and shopping malls or in private workplaces. No matter where you are, remain as calm as possible and remember:
  • Be aware of any possible danger in your environment
  • Identify the two nearest exits
  • If you can flee, do so immediately—leave belongings behind
  • If you cannot flee, hide in an area where the shooter can’t see you
  • If you are behind a door, try to lock or block entry to it
  • Silence electronic devices
  • As a last resort, try to incapacitate the shooter. Keep moving and be distracting. In close range situations,  fighting increases your chance of survival.
  • Call 911 as soon as you can do so safely
Wait for law enforcement to arrive
Law enforcement will usually be required to end the situation. Comply with law enforcement and allow them to resolve the situation as quickly as possible.
There are several ways you can assist:
  • To the best of your ability, be prepared to provide 911 and law enforcement with your location, the number of shooters, physical description of the shooter(s), the number and type of weapons used by the shooter(s) and the number of potential victims
  • When law enforcement arrives, remain calm and follow all instructions
  • Don’t scream or yell
  • Keep your hands raised, visible and free of any objects
  • Evacuate the area quickly—do not stop law enforcement to ask questions or for help
Facing an active shooter can be unimaginable, but being prepared might save your life. Remember to stay alert and as calm as possible. Try to run first, hide if you cannot flee safely and fight only when you have no other choice.

Week 4: Don’t Just Sit There (Focusing on Ergonomics)

If you have back pain, you’re not alone. About 80% of the U.S. population will experience back pain issues at some point in their lives, and 31 million will experience low-back pain at any given time. Most of these cases are not caused by serious underlying conditions, but from actions like improper lifting technique.

Lift safely
Prevent strains, dislocations and muscle tears. When lifting, make sure you:
  • Stretch and warm up before you perform any lifting
  • Keep your back straight and bend your knees – remember to never twist or bend your back
  • Are on solid ground with your feet shoulder-width apart
  • Keep the box or object close to your body
  • Lift with your legs, not your back
  • Limit the amount of weight you carry – separate boxes or make two trips instead of carrying more than you can handle
  • Ask for help to carry heavy, bulky or large loads
  • Keep pathways clear of tripping hazards
Ergonomics for the home office worker
Telecommuting is an increasingly popular option to help employees maintain a better work-life balance. Convenience and flexibility are great, but don’t leave ergonomics at the office.
Make sure:
  • Chairs have proper lumbar and arm support, and can be adjusted for height
  • Feet are flat on the ground or a footrest
  • The viewing distance from your eyes to the monitor is at least 18 inches
  • Your keyboard and mouse are at approximately elbow height
  • Lighting is sufficient enough that you don’t have to strain, but not too bright where glare is an issue
  • To take short breaks. Look away from your screen every 15 minutes, take microbreaks in between bursts of heavy typing and don’t forget to take a rest break every 30 or 60 minutes. Get out of your chair, stretch and move around.
By making ergonomics part of your routine at work and at home, you can keep your body free of strain and pain.

The mission of the National Safety Council is to eliminate preventable deaths at work, in homes and communities, and on the road through leadership, research, education and advocacy. Join us as we help #KeepEachOtherSafe this June and throughout the year. For any questions regarding workplace safety, contact us at Don Dressler Consulting and CalWorkSafety.com today!

Improve Employee Safety Habits With These 3 Tips

22 May
This year’s theme for North American Occupational Safety and Health week was Make Safety a Habit. Check out these ideas from the workers’ compensation provider Texas Mutual Insurance Company to help improve employee safety habits.
  1. See something, say something. Empower your employees to speak up and review the methods in place to report concerns or hazards. Building an environment of open communication supports a safe workplace. You want reporting to become a habit. Recognize reporting and encourage employees to speak directly with their supervisor or safety representative.
  2. Be consistent. To keep safety top of mind, hold regular meetings and provide consistent training. Habits won’t become fully formed in a quarterly meeting, however. Provide resources and enforce the safety practices employees are learning.
  3. Encourage wellness. Safety and wellness go hand-in-hand. When employees hydrate, eat well, and stay active, they feel better, are happier, and likely will stay alert about safety on the job. If an injury does occur, a fit employee stands a better chance of recovering more quickly.

Do you have questions on how your business can improve Employee Safety Habits? Please don’t hesitate to contact us at Don Dressler Consulting and CalWorkSafety.com. We’re here to help!

Get Involved In Occupational Safety and Health Events This Spring

27 Apr

There is one overlooked question that people across North America should ask themselves: “Is my loved one safe at work today?” This spring, the American Society of Safety Engineers (ASSE) is building on that critical question and encouraging people to get involved in one or more of several workplace safety campaigns that can make a difference in reducing risks.

“Too many of us take for granted that our families will come together and be safe and healthy at the end of the workday,” said ASSE President Tom Cecich, CSP, CIH. “That assumption is far from reality given the large numbers of occupational injuries, illnesses and fatalities that occur. ASSE members, along with employers, workers and the public, should participate in campaigns to draw attention to the responsibility we all have to make workplaces safer and healthier.”

In 2015, there were 4,836 fatal work injuries recorded in the United States, according to the U.S. Bureau of Labor Statistics. The International Labor Organization reports that there are 2.3 million deaths globally each year for reasons attributed to work, with the biggest component linked to work-related diseases.

Many of ASSE’s 37,540 members worldwide – who develop and implement safety and health management programs for employers in every industry, every state and across the globe – will be involved in the following safety activities. They are seeking the support of company and community leaders in raising awareness of workplace risks. How will you get involved this year? Read more about the upcoming events below.

April 28, Workers Memorial Day

Workers Memorial Day is observed every year on April 28. It is a day to honor those workers who have died on the job, to acknowledge the grievous suffering experienced by families and communities, and to recommit ourselves to the fight for safe and healthful workplaces for all workers. Every year, events are held across the country to remember workers who have died on the job and honor them by continuing to fight for improved worker safety.

May 1-5, Construction Safety Week 

Led by an alliance of major construction firms and co-sponsored by ASSE, this week was created to raise safety awareness on construction sites across the country. Stand-downs and workplace presentations by executives, OSHA representatives and other stakeholders engage employees and offer important reminders about safe building practices. Learn how to get involved and find ideas for participating on the Safety Week website.

How You Can Get Involved in Construction Safety Week

•Engage leaders in your construction company to hold an event on your work site. This is an excellent opportunity to build a relationship with the C-suite.

•Host an event, such as a safety stand-down, that puts executives in front of workers talking about safety. This encourages their commitment and helps send a message throughout the organization.

•Use #constructionsafetyweek to share your initiatives in social media.

•Engage other stakeholders, such as a local ASSE chapter or OSHA office, in your event to help build cooperative relationships.

•Review Safety Week’s suggestions for events to build your own event.

May 7-13, North American Occupational Safety and Health (NAOSH) Week

North American Occupational Safety and Health Week, or NAOSH Week, occurs every year during the first full week of May. Occupational Safety and Health Professional Day (OSHP Day) falls on the Wednesday of that week. Created by the Canadian Society of Safety Engineers and championed by ASSE, this key observance celebrates its 20th anniversary and encourages grassroots efforts at every organization in all industries to bolster workplace safety. Each year ASSE urges everyone to get involved in NAOSH Week in an effort to better educate the public about the positive benefits a safe workplace provides not only for workers, but for their families, friends, businesses, their local community and the global community.

May 8-12, National Safety Stand-Down

A campaign to prevent falls in construction, led by the Occupational Safety and Health Administration (OSHA) in partnership with ASSE and others. Fatalities caused by falls from elevation continue to be a leading cause of death for construction employees, accounting for 350 of the 937 construction fatalities recorded in 2015 (BLS data). Those deaths were preventable. The National Fall Prevention Stand-Down raises fall hazard awareness across the country in an effort to stop fall fatalities and injuries. Any workplace can hold a stand-down by taking a break to focus on fall hazards and reinforce the importance of fall prevention.

Spearheaded by OSHA and co-sponsored by ASSE, this inaugural event aims to build a stronger connection between safe workplaces and sound businesses. Safety programs identify and manage workplace risks before they cause problems, improving a company’s bottom line. Safety and health programs include management leadership, worker participation, and a systematic approach to finding and fixing hazards in workplaces.

Why Participate?

Safe workplaces are sound businesses. Successful safety and health programs can proactively identify and manage workplace hazards before they cause injury or illness, improving sustainability and the bottom line. Participating in Safe + Sound Week can help get your program started or energize an existing one.

Who Is Encouraged to Participate?

Organizations of any size or in any industry looking for an opportunity to show their commitment to safety to workers, customers, the public, or supply chain partners should participate.

How to Participate

Participating in Safe + Sound Week is easy. To get started, select the activities you would like to do at your workplace. Some organizations might want to host a public event. Examples of potential activities and tools to help you plan and promote your events are available. After you’ve completed your events, you can download a certificate and web badge to recognize your organization and your workers.

“There are many opportunities to play a role in achieving greater workplace safety, and our dedicated members are at the heart of it all,” Cecich said. “They utilize their passion and expertise to implement safety and health management systems at organizations in the United States and globally. But it’s important to remember that we’re all in this together, so everyone should take the time to make an impact on an upcoming safety campaign.”

Businesses Spend More Than $1 Billion a Week on Serious, Nonfatal Workplace Injuries

21 Feb

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New research from Liberty Mutual places a dollar amount on the cost of serious, nonfatal workplace injuries to American businesses.

Each year, the Research Institute produces the Liberty Mutual Workplace Safety Index, which ranks the leading causes of serious, nonfatal work-related injuries in terms of direct workers compensation costs. The Index is based on information from Liberty Mutual Insurance, the U.S. Bureau of Labor Statistics (BLS) and the National Academy of Social Insurance.

According to the 2017 Liberty Mutual Workplace Safety Index, serious, nonfatal workplace injuries now amount to nearly $60 billion in direct U.S. workers’ compensation costs per year. This translates into more than $1 billion dollars a week spent by businesses on these injuries.

The Liberty Mutual Workplace Safety Index helps employers, risk managers and safety practitioners make workplaces safer by identifying critical risk areas so that businesses can better allocate safety resources.

Top 10 Injury Causes

1. Overexertion involving outside sources ranked first among the leading causes of disabling injury. This event category, which includes injuries related to lifting, pushing, pulling, holding, carrying or throwing objects, cost businesses $13.79 billion in direct costs and accounted for 23 percent of the overall national burden.

2. Falls on same level ranked second with direct costs of $10.62 billion and accounted for 17.7 percent of the total injury burden.

3. Falls to a lower level ranked third at $5.50 billion and 9.2 percent of the burden.

4. Struck by object or equipment ranked fourth at $4.43 billion and 7.4 percent.

5. Other exertions or bodily reactions ranked fifth at $3.89 billion and 6.5 percent of the total injury burden.

6. Roadway incidents involving motorized land vehicle ranked sixth at $3.7 billion

7. Slip or trip without fall ranked seventh at $2.3 billion

8. Caught in/compressed by equipment or objects ranked eighth at $1.95 billion

9. Struck against objects or equipment ranked ninth at $1.94 billion

10. Repetitive motions involving micro-tasks ranked tenth at $1.81 billion

The top five injury causes accounted for 63.8 percent of the total cost burden for U.S. businesses. The remaining five injury causes combined accounted for 19.5 percent of the total direct cost of disabling injuries.

Direct costs of all disabling work-related injuries equaled $59.87 billion, with the top 10 causes comprising 83.4 percent – or $49.92 billion – of the total cost burden to employers.

Do you have questions about the costs of serious, nonfatal workplace injuries? Please don’t hesitate to contact us at Don Dressler Consulting and CalWorkSafety.com. We’re here to help!

Discrimination Protection extended to those “affiliated” with an employee

27 May

As disability discrimination and accommodation claims continue to rise across the country, an appellate court in California may have just helped significantly expand such claims in the future by finding that an employee can maintain a suit for “associational” disability discrimination based on the disability of his son. Castro Ramirez vs. Dependable Highway Express Inc. California Court of Appeals, 2nd District issues April 4, 2016.

The key facts are as follows: The employer knew the employee’s son required a daily dialysis treatment that only the employee could administer. For several years, the employer scheduled the employee so that he could be home at night in time for the dialysis. However, that schedule accommodation changed when a new supervisor took over. The employee was ultimately terminated for refusing to work a shift that would have prevented him from performing his son’s dialysis on time. The appellate court held that the employee could pursue his claims for disability discrimination, failure to prevent discrimination, and retaliation in violation of the California Fair Employment and Housing Act (FEHA), as well as wrongful termination in violation of public policy.

In reaching this conclusion, the court confirmed that under both the California FEHA and the federal Americans with Disabilities Act (ADA), an employee may bring a claim for associational disability discrimination if an adverse employment action was substantially motivated because of an employee’s association with someone who has a disability. The court further expanded the law by holding that the California FEHA also creates a duty to provide reasonable accommodations to an employee who is associated with a disabled person (even though no such duty exists under the federal ADA).

Applying this law to the case at hand, the court found that it can be reasonably inferred that the employer (through its new supervisor) acted proactively to terminate the employee in order to avoid the inconvenience and distraction related to employee’s need to care for his disabled son. The court also stated that the employer stated reason for the termination – employee’s refusal to work the assigned shift – was a pretext because employer’s policies allowed for less severe discipline under such circumstances and because a customer had specifically asked the employee to work an earlier shift (such that there was no legitimate reason for assigning employee to a later shift).

This case presents yet another example of the many nuances that exist with disability discrimination cases. Furthermore, although this decision was technically based upon California law, the conclusions were reached by mostly interpreting federal law. Therefore, many of the concepts raised in this case could apply across the country. As always, it is a good idea to seek legal assistance whenever uncertainty exists related to any disability or accommodation issues

 

INTRODUCTION

When addressing the needs of applicants or employees with disabilities, California employers must be careful to comply with two laws: (1) the federal Americans with Disabilities Act (ADA); and (2) the disability provisions of the California Fair Employment and Housing Act (FEHA). Because decisions relating to accommodation of disabilities are fact-intensive and must be made on a case-by-case basis, employers need to take care to ask questions and determine all of the facts of a situation, and in any difficult instance, consult an experienced human resources advisor or employment attorney, because a violation of an employee’s rights can be both costly and complicated.

WHICH EMPLOYERS ARE COVERED?

The ADA applies to all employers with 15 or more employees. The FEHA applies to employers with five or more employees. Part-time employees are included in determining whether an employer has the requisite number of employees to trigger coverage under these laws.

WHO IS DISABLED?

The key to compliance with the ADA and related FEHA provisions is to understand who is considered disabled. Under the ADA, disabled persons are those who have physical or mental impairments that substantially limit their ability to perform one or more major life activities, such as breathing, walking, working, seeing, hearing, performing manual tasks, caring for oneself, etc. In California, the definition of disability is much broader. People are considered disabled if they are limited in any way in performing a major life activity – they do not have to be substantially limited. People also are considered disabled if they have a history of such an impairment, such as a history of mental illness, or if they are regarded as having such an impairment, someone who is assumed to be disabled even if the assumption turns out to be wrong. . The ADA and FEHA also prohibit discrimination against individuals who are related to or associated with disabled individuals because of that relationship or disability.

When evaluating whether a California employee – or a person who is relying on them for care such as a child, spouse or other close family member and thus “associated” with them for FEHA protection – is limited in performing a major life activity, the employer must base that evaluation on the employee’s (or other person’s) condition without taking into account that person’s use of corrective medication or other corrective medical devices, such as glasses, prosthetics, etc. Because of California’s broad definition of disability, it is important for employers to understand that a large majority of California employees and those associated with them would likely qualify as disabled under state law, even though they would not be considered disabled under the ADA.

In general, any time an employee presents reports a medical need to be off of work, even if only for a few days, there is a reasonable chance that the employee will be considered “disabled” or affiliated with someone disabled and thereby invoking the protections of FEHA.

Effective April 2016 – updated Equal Employment and Anti-Harassment policies

29 Apr

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.[7]

Training Requirements

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.

Enforcement

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.