Companies with employees in California better take note: a new State law there mandates increased obligations governing the prevention of harassment, discrimination, and retaliation in the workplace. Companies may need to review and revise their policies and procedures accordingly.
Effective as of April 1, companies with five or more employees, including out-of-state employers with California employees, must meet stringent new standards regarding harassment, discrimination, and retaliation policies and procedures. Although these particular regulations are limited to companies with California employees, the requirements themselves appear to be part of a broader regulatory trend at the federal level.
Draft guidelines issued in October 2015 by the Department of Labor, for example, “line up pretty seamlessly with these California requirements,” says Gregory Keating, chair of the labor employment and benefits and whistleblower defense groups at law firm Choate. “When you marry them up with the federal developments over the last 18 to 24 months with the creation of these guidelines, it’s something that is gathering momentum.”
“California could be a model that others follow,” Keating adds. “We strongly encourage employers to double down on compliance in these evolving areas.”
Under California law, companies there have always been required to take “reasonable” steps to prevent discrimination and harassment from occurring, as mandated by the Fair Employment and Housing Act (FEHA). The amended regulations, in contrast, require companies to create even more detailed and specific policies concerning the prevention of harassment, discrimination, and retaliation in the workplace.
“California could be a model that others follow.”
Gregory Keating, Practice Group Leader, Choate
One change, for example, requires that the company’s anti-discrimination policy list all of California’s protected classes of employees—several of which have been redefined under the law. Many companies often list general protected classes like “race, color, sex, religion, or national origin,” in their anti-discrimination policies, but under California law that’s not enough.
“California has quite a number more categories of protected groups than many other states, and certainly more than exist under federal law,” says Denise Visconti, office managing shareholder at law firm Littler.
Current protected classes under California law are “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (over 40), sexual orientation, or military and veteran status.”
In addition to listing all protected classes, written policies must further:
Instruct supervisors to report all complaints;
State that supervisors, co-workers, and third parties are prohibited from engaging in unlawful behavior under the FEHA;
State that employees will not be retaliated against for lodging a complaint or participating in an investigation;
State that the employer will maintain confidentiality to the extent possible;
State that all allegations of misconduct will be followed by a fair, complete, and timely investigation; and
State that remedial measures will be taken if misconduct is found.
Given the ever-evolving landscape of protected classes, employment law experts advise that companies additionally consider including a statement that prohibits discrimination, harassment, and retaliation on “any other basis protected by applicable federal, state, and local laws.”
Complaint process
Aside from adding in new policy clarifications, companies must further ensure they have in place a complaint process whereby complaints receive:
An employer’s designation of confidentiality, to the extent possible;
Impartial and timely investigations by qualified personnel;
Documentation and tracking for reasonable progress;
Appropriate options for remedial actions and resolutions; and
Timely closures of investigations.
The amended regulations also require companies to provide a complaint mechanism that does not require the employee to complain directly to an immediate supervisor. Such mechanisms may include a complaint hotline, access to an ombudsperson, or direct communication with a designated company representative—such as a human resources manager, equal employment opportunity officer, or other supervisor.
Policy distribution
The regulations further require that, where 10 percent or more of the workforce speaks a language other than English, the company must translate their policies into each such language. Furthermore, companies must distribute such policies to their employees.
HARASSMENT AND DISCRIMINATION PREVENTION
Below is a list of requirements in the amended Fair Employment and Housing Act Regulations on how employers with California employees are expected to prevent and correct harassment and discrimination.
(a) Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct. (Gov. Code, § 12940(k).
A determination as to whether an employer has complied with Government Code section 12940(k) includes an individualized assessment, depending upon numerous factors sometimes unique to the particular employer including, but not limited to, its workforce size, budget, and nature of its business, as well as upon the facts of a particular case.
There is no stand-alone, private cause of action under Government Code section 12940(k). In order for a private claimant to establish an actionable claim under Government Code section 12940(k), the private claimant must also plead and prevail on the underlying claim of discrimination, harassment, or retaliation.
However, in an exercise of its police powers, the Department may independently seek non-monetary preventative remedies for a violation of Government Code section 12940(k) whether or not the Department prevails on an underlying claim of discrimination, harassment, or retaliation.
(b) Employers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act. In addition to distributing the Department’s DFEH-185 brochure on sexual harassment, or an alternative writing that complies with Government Code section 12950, an employer shall develop a harassment, discrimination, and retaliation prevention policy that:
Is in writing;
Lists all current protected categories covered under the Act;
Indicates that the law 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 Act;
Creates a complaint process to ensure that complaints receive:
An employer’s designation of confidentiality, to the extent possible;
A timely response;
Impartial and timely investigations by qualified personnel;
Documentation and tracking for reasonable progress;
Appropriate options for remedial actions and resolutions; and
Timely closures.
(5) Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
A complaint hotline; and/or
Access to an ombudsperson; and/or
Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
(6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
(7) Indicates 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.
(8) States that confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.
(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
Source: Fair Employment & Housing Council
Specifically, to be in compliance with the distribution requirements, employers may do any one of the following:
Provide a copy of the policies to all employees either in hard copy or by e-mail with an acknowledgment form for employees to sign and return;
Post the policies on a company intranet site using a tracking system to ensure all employees read and acknowledge receipt of the policies; or
Discuss the policies upon hire or during new-hire orientation sessions.
Investing in an intranet site using a tracking system is particularly important for companies whose employee base works out in the field, as opposed to an office environment, says Visconti.
Training requirements
California law already required companies with at least 50 employees to provide supervisors with regular training on sexual harassment. The amended regulations additionally require companies to include a component on what constitutes “abusive misconduct, ” as well as explain the negative effects of abusive conduct—such as a reduction in productivity and morale.
Specifically, sexual harassment training should discuss the elements of abusive conduct, including conduct “with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests,” the regulations state. Abusive conduct may include “repeated infliction of verbal abuse—such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating—or the gratuitous sabotage or undermining of a person’s work performance.”
Such training must further emphasize that, while a single act ordinarily will not constitute abusive conduct, it could if it is “especially severe or egregious.” Other new requirements mandate that supervisors be trained on their legal obligation to report sexual harassment, discrimination, or retaliation, and that they know what appropriate steps to take to address and correct misconduct.
From a compliance standpoint, one of the more burdensome requirements mandates that companies maintain for a minimum of two years all written or recorded materials that comprise the training, including:
The names of supervisors who were trained;
The date of the training; • Type and name of the training provided;
Copies of all webinars;
All written questions and responses from webinars and e-learning; and
Sign-in sheets and all certificates of attendance or completion issued.
During the comment period, some argued that these recordkeeping requirements are too onerous, “particularly as this puts the burden on the employer (who may or may not even have access to the materials themselves), rather than the trainer,” wrote one commentator. “Accordingly, placing the burden on the employer to obtain all of this information and then retain it for a period of two years is unreasonable.”
The Fair Employment and Housing Council starkly disagreed. “It is not a burden on employers to maintain these records and, in fact, it behooves them to do so in order to prevent sexual harassment and the dignitary, financial, and reputational consequences of it.”
The regulations do not call for any monetary penalties for non-compliance, but the Department of Fair Employment and Housing (DFEH) now has authority to impose “non-monetary preventative remedies” on companies that fail to prevent discrimination or harassment, even if the DFEH doesn’t prevail on an underlying claim of discrimination, harassment, or retaliation. Failure to comply with these policy requirements further opens the company up to harassment, discrimination, or retaliation claims.
Many companies contacted by Compliance Week declined to comment on the regulations. Those who did respond indicated that they’re well-prepared. “We already had the revised policies in place, so we did not make any changes or enhancements based on the new requirements,” says Andrea Hicklin, a spokesperson with clothing company Levi Strauss.
The regulations will more likely have a greater effect on small to mid-size companies, often restrained by limited budgets and resources, not to mention the more significant impact that training can have on the disruption to their operations, compared to a large company.
Although implementing anti-harassment, anti-discrimination, and anti-retaliation policies and procedures may come with an initial short-term cost, done right, the costs are outweighed by the long-term benefits of fostering a robust culture of ethics and compliance and, equally important, trust.
To learn more about how to improve your company’s training and communication program, be sure to attend the Compliance Week 2016 conference on May 23-25, 2016, in Washington, D.C. Register today!
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