Employment Policies

New FEHA Regulations May Require Handbook Revisions

Most employers already have anti-harassment policies, but effective April 1, 2016, amended FEHA regulations may require some handbook revisions.  The following summarizes the requirements imposed by the amended regulations.  Read on to see if your anti-harassment policies need to be revised.

Anti-Harassment Handbook Revisions

All California employers with 5 or more employees must develop a written harassment, discrimination and retaliation prevention policy that lists all current protected categories covered under the FEHA.  The policy must indicate 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 FEHA.

Handbook Revisions Regarding Complaint Process

The policy must include a complaint process to ensure that complaints are kept confidential, to the extent possible.  The complaint process must also require a timely response and an impartial and timely investigations by qualified personnel.  The policy must include documentation and tracking for reasonable progress, appropriate options for remedial actions and resolutions, and timely closures.

The complaint mechanism cannot require an employee to complain only to his or her immediate supervisor. The policy should allow for oral or written communication with a designated company representative, such as a human resources manager, EEO officer, or other supervisor.  Alternatively, the policy can include complaint hotline and/or access to an ombudsperson.  The policy should also notify employees they have a right to complain the EEOC—including contact information for the organization.

The policy must instruct supervisors to report any complaints of misconduct to a designated company representative (i.e., HR 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.

The policy should also state that when an employer receives allegations of misconduct, the employer will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.  If at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.  The policy must also make it clear that employees will not be exposed to retaliation as a result of making a complaint or participating in any workplace investigation.

Disseminating New Harassment Handbook Revisions

There are also new dissemination requirements.  Employers must either:

·      Print and provide a copy to all employees with an acknowledgment form for the employee to sign and return;

·      Send the policy via e-mail with an acknowledgment return form;

·      Post current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;

·       Discussing policies upon hire and/or during a new hire orientation session; and/or

·      Any other way that ensures employees receive and understand the policies.

I recommend a discussing the policies during a new hire orientation AND providing a printed copy for the employee to sign and return.  Employers must also translate the policy into every language that is spoken by at least 10 percent of the workforce at any facility or establishment.

Given the speed with which the courts and the legislature alter the employment law landscape, employers should consider updating their handbooks every year, or at least every other year.  Adding or losing a significant number of employees may also require handbook revisions because different laws apply depending on how many employees work for the company.  There are a number of low-cost ways to create a handbook, but employers should not just copy and paste someone else’s handbook without ensuring the policies fit the workplace.  For more information about handbook revisions, see my article regarding Facts and Myths Regarding Employee Handbooks.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

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