New Anti-Harassment Regulations In Effect
Effective April 2016, the Fair Employment and Housing Commission adopted new regulations regarding sexual harassment in the workplace. Employers have an affirmative duty to create a workplace environment that is free from sexual harassment and other employment practices prohibited by the Fair Employment and Housing Act. The new anti-harassment regulations provide clarity, but also create some ambiguity. Employers who have not modified their handbooks to comply with the new regulations could find themselves in trouble.
What Must Be Included in Policies Under the New Anti-Harassment Regulations?
In addition to distributing the Department’s DFEH-185 brochure on sexual harassment, all employers must develop a written harassment, discrimination, and retaliation prevention policy that lists all current protected categories covered under the Act. The list is ever-growing, so it is important to list all protected categories.
The anti-harassment 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 the Act. The new anti-harassment regulations also require employers to create a complaint process to ensure that complaints receive:
(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.
The regulations don’t define “qualified personnel,” but it likely refers to the same persons that can conduct sexual harassment prevention training, or other persons trained to conduct investigations. The new regulations beg the question of whether an existing employee can ever truly be “impartial.”
Anti-Harassment Complaint Process
The complaint mechanism cannot require an employee to complain only to his or her immediate supervisor. Other individuals, such as the following, must be available to receive complaints:
(A) 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
(B) A complaint hotline; and/or
(C) Access to an ombudsperson; and/or
(D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
The new anti-harassment regulations require 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. The regulations do not define “misconduct,” but the term is arguably broader than complaints about sexual harassment.
Not surprisingly, when an employer receives allegations of misconduct, it must conduct a “fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.” The regulations do not, however, define what constitutes “due process.” Additionally, I guarantee there will be litigation over whether the conclusions reached are “reasonable,” and “based on the evidence collected.”
The policies must state that “confidentiality will be kept by the employer to the extent possible, but not indicate that the investigation will be completely confidential.” The policy must also state “that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.”
Finally, the policy must make it clear that “employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.” Again, note that the anti-harassment regulation is not limited to complaints about harassment. Arguably, employers cannot retaliate against an employee because the employee participates in any “workplace investigation.”
Disseminating Policies Under the New Anti-Harassment Regulations
The new anti-harassment regulations also dictate how the policy must be provided to employees:
(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.
Any employer whose workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language shall translate the policy into every language that is spoken by at least 10 percent of the workforce.
The new regulations can be found at Cal. Code Regs., tit. 2, § 11023
If you haven’t updated your handbook recently, now is a good time to review the policies to ensure your handbook complies with the new regulations.
Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
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