FEHA Mandates Some Spring Cleaning for California Employers

Labor & Employment

Action Item: Despite the date, don’t be fooled—on April 1, 2016, California’s amended anti-discrimination regulations under the Fair Employment and Housing Act (“FEHA”) will take effect, requiring employers to update and distribute complaint policies, as well as ensure their workforce—particularly supervisors and managers—are well-educated and properly trained on what the FEHA prohibits and what their own policies actually provide.

So, grab your trusty old FEHA policies (you know, policies prohibiting harassment, discrimination, and retaliation) and your favorite red pen.

Here’s what you need to know:

New! Prevention Policy and Complaint/Investigation Requirements

For every California employer with five or more employees (regardless of location), the policies must:

  • specifically list all protected employee characteristics under FEHA, i.e.: “We do not discriminate based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sex stereotype, transgender, age, sexual orientation, and military of veteran status, and non-citizen applicants who hold a driver’s license issued under Section 12801.9 of the Cal. Vehicle Code…”
  • state that FEHA’s protections prohibit unlawful conduct not only by supervisors, managers, and co-workers, but also third parties who come in contact with employees;
  • provide that reported complaints will be kept confidential, “to the extent possible;”
  • designate impartial, qualified personnel to receive complaints and conduct the investigations (i.e., not the employee’s immediate supervisor!);
  • emphasize the timeliness of the investigation, the timeliness of the response, and the timeliness of the investigation closure;
  • state that supervisors must timely report any complaints of misconduct they receive to a designated company representative (sense a theme here?);
  • designate personnel to whom supervisors can make or report complaints;
  • state that the employer will conduct a fair, timely, and thorough investigation that provides all parties with appropriate due process and reaches a reasonable conclusion based on the evidence;
  • provide for “appropriate options for remedial actions and resolutions” following an investigation;
  • provide that appropriate remedial measures will be taken if misconduct is found;
  • state that investigations be documented and tracked internally; and
  • prohibit retaliation!!

These policies are only good if your employees can read and understand them, so if at least 10 percent of your workforce speaks another language, the policies must be translated.

New! Sexual Harassment Training and Recordkeeping

California employers of 50 or more employees are already required to provide harassment training and education to their supervisors once every two years, or within six months of hire or promotion to a supervisory position. The training must also:

  • instruct supervisors of their obligation to report prohibited conduct;
  • cover steps necessary to prevent and remedy prohibited conduct;
  • explain the negative effects abusive conduct has in the workplace generally; and
  • feature interactive components that facilitate learning, such as quizzes or small group discussion questions.

Employers are also required to keep training records for two years, including a copy of the webinar, the written materials used (such as questions submitted and written responses given), sign-in sheets, certificates of attendance or completion, names of supervisors trained, dates of training, types of training, and the names of the training providers.

New! Revised Notice to Satisfy Pregnancy Disability Leave Posting Requirements

Included with the amended regulations is a new notice, Your Rights and Obligations as a Pregnant Employee, that must be posted by April 1, 2016.

For further information on how California’s amended anti-discrimination regulations may affect your company, please contact Caroline Donelan or any member of Blank Rome LLP’s Labor and Employment practice group.

©2016 Blank Rome LLP. All rights reserved. Please contact Blank Rome for permission to reprint. Notice: The purpose of this update is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. This update should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.