Beginning April 1, 2016, new California regulations regarding discrimination, harassment and pregnancy disability leave went into effect. The California Fair Employment and Housing Counsel, has created a new notice required of California employers. (Click Here for a copy of the poster.) Although the applicable law regarding these issues has not changed, there are new amendments which provide complete requirements regarding such anti-harassment policies and investigations. Such changes introduce additional notice and recordkeeping requirements which every employer should become aware of immediately. Failure to understand or implement practices that follow California employment laws can lead to significant liability that can be possibly harmful for many business owners.
1.Anti- Discrimination and Harassment Policies
Under the new anti-discrimination and harassment policies, an employer is responsible to take reasonable steps to prevent discriminatory and harassing conduct. Such amended regulations required employers to create a written policy for harassment, discrimination and retaliation meeting such requirements:
lists all current protected categories covered under the Fair Employment and Housing Act (“FEHA”)—it is no longer acceptable to list only some protected categories and have a catch-all “or any other characteristic protected by law”.
informs that the law prohibits coworkers, third parties, supervisors and managers from engaging in conduct prohibited by the FEHA.
generates a complaint process that ensures: confidentiality (to the extent possible under the circumstances), a timely response, impartial, fair, thorough, and timely investigation by qualified personnel, appropriate due process, documentation and tracking, appropriate conclusions will be made and remedial actions will be taken, and timely closure of such investigations.
provides a complaint mechanism that allows employees the option of complaining to an individual or entity other than his or her immediate supervisor.
instructs supervisors to report of misconduct to a designated company representative.
make clear that employees shall not be exposed to retaliation for lodging a complaint or participating in a workplace investigation.
2. The How-To on Posting Guidelines
Employers who employ five or more employees must make employees aware of their written anti-discrimination and harassment policy by distributing copies of the policy upon hire, posting the policy in the workplace (electronic posting is permitted) or any other method that ensures employees receive and understand the policy. Finally, an employer is to translate the policy into every language that is spoken by at least 10 percent of its workforce.
3. Recordkeeping for Sexual Harassment Training
Employers are now obligated to keep any and all documents of sexual harassment training for a minimum of two years including, but not limited to:
names of the supervisory employees trained
dates of the training
copy of all certificates of attendance or completion issued
copy of all written or recorded materials that compromise the training
name of the training provider.
4. Impact of New Regulations on Employers
To be in compliance with new regulations, employers should update their anti-discrimination and harassment policies. It is important that employers review their investigation procedures and employ any changes necessary to comply with the requirements described above. Lastly, it is important that employers update their record retentions policies to be up to date with meeting all new regulation’s recordkeeping requirements.
5. Pregnancy Disability Leave Regulations
The California Department of Fair Employment and Housing has created a new poster, titled “Your Rights and Obligations as a Pregnant Employee,” (click here for a copy of the poster.) Employers are required to meet these new regulations posting by posting this notice in a visible place on its premises. As it is recommended, employers should post this notice in the workplace as soon as possible and the DFEH’s website states that employers will not be penalized if they do not post the new notice immediately upon April 1.
In addition, when an employee provides an employer with notice of pregnancy or the need for leave or reasonable accommodation related to pregnancy, employers should provide the employee with the new “Your Rights and Obligations as a Pregnant Employee” notice, in replacement of the notice previously used by the employer.
Finally, employers are required to do one of the following: provide employees with advance notice of their PDL rights in the next version of their employee handbook or send employees a notice of such rights on an annual basis. As a suggestion, to avoid any administrative burdens of distributing an additional annual notice, it would be proper to place the notice of PDL rights in the employee handbook.
6. What Steps Should California Employers Take To Be In Compliance With The New Employment Regulations?
This is an opportunity for California employers to review their employment-related posters and notice to ensure compliance with these changing requirements. As always, Thakur Law Firm, APC is available to answer any questions or concerns you may have and would be happy to help in updating handbooks and policies in order to comply with these new regulations.
If you require any additional information about these laws, please contact Thakur Law Firm, APC at firstname.lastname@example.org.