Significant Changes to the Anti-Harassment Policies, Training and Procedures

Kim Silvers, SPHR-CA, SHRM-SCP

The CA Fair Employment Housing Council (FEHC) has been working overtime to create more compliance requirements for our employers.  The most arduous of the recent list is a renewed emphasis on anti-harassment, discrimination and retaliation policies and employees’ mandated acknowledgement of their rights under these laws.

Effective April 1, 2016, all CA employers with five or more employees must ensure their employees receive and acknowledge a written anti-harassment policy.  The FEHC has outlined very specific information that must be included in each policy, as well as the training required for managers and supervisors in organizations with 50 or more employees and contractors.

All California harassment, discrimination and retaliation policies must be in writing and include the following:

• List all protected categories covered under the Fair Employment and Housing Act (FEHA);
• 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 FEHA;
• Create a comprehensive 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 resolution; and
  • Timely closures;
• Provide 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 an HR manager, EEO officer, or other supervisor;
  • A complaint hotline;
  • Access to an ombudsperson; and/or
  • Identification of the California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints;
• Instruct supervisors to report all complaints of misconduct to a designated company representative, such as an HR manager, so the company can try to resolve the claim internally;
• 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;
• State that confidentiality will be maintained to the extent possible, but not indicate that the investigation will be completely confidential;
• Indicate that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken; and
• Make clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.

Employee Acknowledgement

The new regulations require employers to distribute the policy through one or more of these methods: 1) Printing and providing a copy to all employees with an acknowledgement form for the each employee to sign and return; 2) emailing the policy to employees, along with an acknowledgement return form; 3) posting the policy on the company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policy; 4) discussing the policy with new hires and/or during new hire orientation sessions; and/or 5) any other distribution method that ensures employees receive and understand the policy.

An employer whose workforce at any facility or establishment contains 10 percent or more employees who speak a language other than English as their spoken language must translate the policy into every language spoken by at least 10 percent of the workforce.

In light of all this we have revised our anti-harassment policy template. It is available for our clients on our Silvers HR library.  We will also update our Respect in the Workplace workshop materials/content for those required to attend under the AB 1825 requirements. The regulations still require that employers with 50 or more employees and contractors conduct at least two hours of anti-harassment, discrimination and retaliation training for supervisors and managers every two years and within six months of an assignment to such a position

Here’s what employers need to do:

1. Create or update your anti-harassment policy in accordance with the new FEHA Regulations. (Our clients have received our new policy template meeting all the requirements.)
2. Give/send/make available to each employee a copy of your updated policy. Each employee (not just supervisors and managers) is required to read and sign the policy noting that s/he understands it.  The employee should receive a copy of the new policy and the signed copy should be placed in his/her personnel file.  You may also distribute the updated policy to all employees via an email or post it on your intranet, but you must track/prove that they have read and understand the policy.
3. All new hires (regardless of title or classification) should receive a copy of the new policy during their onboarding process. Acknowledgement of their receipt and understanding  must be tracked as well.
4. When your employee handbook is updated insert the new policy in place of the current anti-harassment policy.  In the meantime, it is okay to attach the updated policy with your current handbook.  By the way, including the anti-harassment policy in the employee handbook is important, but it must also be disseminated to employees as a standalone policy.  A specific receipt for the anti-harassment policy is required.

There are extensive changes to the regulations regarding this topic.  You may read the full Amendments to the Fair Employment and Housing Act Regulations at this link:  https://www.dfeh.ca.gov/res/docs/FEHC/FinalText.pdf.  The specific changes for this topic are in the first 24 pages.

Please give us a call if you have questions.