Effective April 1, 2016, the California Fair Employment and Housing Council (“FEHC”) amended the current anti-harassment and anti-discrimination regulations. California employers should carefully review the amended regulations to assess what changes should be made to their policies, trainings, and notices.

Employer Action Items

All employers must determine if they are now a “covered employer” within the meaning of the new regulations.
Employers should review their current anti-harassment, anti-discrimination, and anti-retaliation policies and amend the policies to comply with the new requirements. Detailed information is below.

Employers with 50 or more employees also will need to review and modify their existing sexual harassment training for supervisory employees to cover the new requirements in the regulations.

Covered Employers

The new regulations clarify the scope of employers that are covered under the California Fair Employment and Housing (the “FEHA” or the “Act”). The FEHA applies to California employers who regularly employ five or more persons. The new regulations make clear that, in determining whether an employer employs five or more persons, consideration must be given to out-of-state employees. Therefore, employers with fewer than five employees in California would still be covered if they have five total employees spread across the country. However, the regulations also make clear that while employees located outside of California are counted in determining whether employers employ five or more individuals for coverage purposes, the employees located outside of California are not covered by the protections of the Act if the wrongful conduct did not occur in California and was not ratified by decision makers or participants located in California.

Additionally, employees on paid or unpaid leave, including California Family Rights Act leave, leave of absence, disciplinary suspension, or other leave, are counted for purposes of the five-employee threshold.

Unpaid Interns And Volunteers

The regulations expand the FEHA’s application from employees to now include unpaid interns and volunteers. Under the FEHA, it is now unlawful for anyone to discriminate against a person who serves in an unpaid internship or any other limited-duration program to provide unpaid work experience in the selection, termination, training, or other terms and treatment of that person on any basis protected basis.

Updates To Anti-Harassment And Anti-Discrimination Policies

The new regulations require covered employers to have written anti-harassment, anti-discrimination, and anti-retaliation policies that meet a number of new requirements. The policies must do each of the following:

  1. List all of California’s current protected classes under the FEHA: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex (which includes pregnancy), gender, gender identity, gender expression, age, sexual orientation.
  2. Indicate that the FEHA 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 FEHA.
  3. Create a complaint process to ensure that complaints receive all of the following:
    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.
  4. Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor.
    a. Examples include: (a) a complaint hotline; (b) access to an ombudsperson; and (c) direct communication, either orally or in writing, with a designated company representative.
  5. Instruct supervisors to report any complaints of misconduct to a designated company representative.
  6. Indicate 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.
  7. State that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
  8. Indicate that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
    Make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Distribution Of New Policies

The new regulations provide a number of specific methods for employers to disseminate their updated policies:

  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.

Foreign Language Translation

Under the new regulations, employers whose workforce, at any facility or establishment, is comprised of at least 10% of individuals who speak a language other than English must translate the policy into every language that is spoken by at least 10% of the workforce.

Revisions To Sexual Harassment Training

Employers with 50 or more employees are already required to provide supervisory employees with a minimum of two hours of sexual harassment training every two years, pursuant to California Government Code Section 12950.1. Under the new regulations, employers are now required to instruct supervisors to report any complaints of misconduct to a designated company representative as part of the mandated sexual harassment prevention training. Employers are also required to cover “abusive conduct,” and provide an overview of the remedies available for sexual harassment victims in civil actions, as well as potential employer/individual exposure and liability.

The new regulations modify employers’ recordkeeping obligations. An employer must now keep documentation of the training it provides its employees for a minimum of two years and track additional information. The records must include the names of each of the supervisory employees trained, the name of the training provider, the date of the training, the sign in sheet, a copy of all certificates of attendance/completion issued, the type of training, and a copy of all written or recorded materials that were used in the training.

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If you have any questions about these new regulations, including needing help revising your company’s policies to comply with these new regulations, or any other question about your company’s employment policies, please contact your SFSSW attorney. If you do not presently have an attorney with the firm, please contact Millicent Sanchez, Janet Swerdlow, or David Wimmer.

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