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Employment Law 
eAlert Newsletter
April 2016

 
DON'T BE FOOLED - NEW FEHA REGULATIONS TAKE EFFECT
APRIL 1, 2016
 
The California Fair Employment and Housing Council's amendments to the Fair Employment and Housing Act's (FEHA) regulations were approved on December 9, 2015 and take effect on April 1, 2016.  Employers should carefully review their postings, notices, policies, and employee handbooks to make sure that their policies on unlawful discrimination, harassment, and retaliation, as well as policies regarding pregnancy leave, rights and obligations, are updated for compliance with the new regulations.  
Anti-Discrimination, Harassment, and Retaliation Policies
FEHA expressly applies to employers with 5 or more employees.  Despite the expressed language of the Act limiting its application to only those employers having 5 or more employees, courts interpreting harassment claims under FEHA have held that because conduct that violates FEHA is against public policy, all employers, regardless of the number of employees, must comply with FEHA.  Therefore, all employers should be aware that the amended regulations regarding unlawful harassment, as well as anti-discrimination and retaliation policies, may be applicable to them.  In other words, even if your company has fewer than 5 employees, you should not assume that you are exempt from FEHA requirements.
 
The amended regulations incorporate recent changes to FEHA and case law relating to unlawful discrimination, harassment, and retaliation.  The amendments mirror FEHA's definition of key terms, such as gender expression (a person's gender-related appearance or behavior, whether or not stereotypically associated with the person's sex at birth), gender identity (a person's identification as male, female, a gender different from the person's sex at birth, or transgender), and transgender (a general term for a person whose gender identity differs from the person's sex at birth). Further, the defined class of  "employees" protected by FEHA has expanded to now include interns, volunteers, and persons providing services under a contract.  The updated regulations also incorporate FEHA's 2001 revisions, which provided, among other things, that any employee who engages in unlawful harassment of a co-employee is personally liable for harassment, regardless of whether the employer knew or should have known of the conduct and/or failed to take corrective action. 

Perhaps most importantly, the revised regulations require employers to develop a written policy to prevent harassment, discrimination, and retaliation.  The policy must list all current protected categories covered under FEHA, such as race, religion, color, national origin, ancestry, physical and/or mental disability, medical condition, genetic information, marital status, sex, gender, gender, identity, gender expression, age, sexual orientation, military and/or veteran status.  Policies should also include a statement that prohibits discrimination, harassment, and/or retaliation on "any other basis protected by applicable federal, state and local laws." 

A written policy on investigation procedures and practices must state and provide for:
  • An employer's designation of confidentiality to the extent possible;
  • Timely response and timely closures;
  • Impartial and timely investigation by qualified personnel;
  • Documentation and tracking for reasonable progress;
  • Appropriate options for remedial actions and resolutions;
  • Instructions to supervisors to report any complaints of misconduct to a designated company representative, so the company can try to resolve the claim internally;
  • 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 reach reasonable conclusions based on the evidence collected;
  • A clear statement and practice that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation; and
  • No requirement that an employee must complain directly to his or her immediate supervisor (instead they can directly communicate, either orally or in writing, to a designated company representative, such as a human resources manager or other supervisor; a complaint hotline; and/or to the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints).
Employers must disseminate the written policy via one of the following methods:
  • Printing and providing the policy to the employees with an acknowledgment form for the employee to sign and return;
  • Sending the policy via e-mail with an acknowledgment return form;
  • Posting the policy 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.
If 10% of the workforce speaks another language other than English, employers must translate the prevention policies into that language. 
 
Lastly, the amended regulations provide for one small victory for employers - in order to prevail against an employer, a private claimant must plead and show that the employer failed to take reasonable steps to prevent and correct the underlying claim of discrimination, harassment, or retaliation.   Incorporating the minimum elements set forth above in a written policy, and subsequently following that policy, should help employers engage in effective anti-discrimination, harassment, and retaliation investigations. 
Supervisor Sexual Harassment Training Requirements
The amended regulations under FEHA provide further requirements regarding the proper training methods and recordkeeping for supervisor sexual harassment training.  Under current law,  all  employees must receive from their employers a copy of the DFEH pamphlet   Sexual Harassment is Forbidden by Law" (DFEH-185)   or an equivalent document. Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees, and to all new supervisory employees within six months of assuming a supervisory position. Thereafter, covered employers must provide sexual harassment training and education to each supervisory employee once every two years.  The amended regulations now require that employers maintain the following information related to the supervisor harassment trainings for a minimum of two years:
  • Names of the supervisory employees trained;
  • Date of training;
  • Sign in sheet;
  • Copy of all certificates of attendance or completion issued;
  • Type of training;
  • Copy of all written or recorded materials that comprise the training; and
  • Name of the training provider.
For supervisor trainings conducted by interactive electronic means, such as webinars, the trainer must also maintain copies of all materials, employee questions, and written responses to employee questions for two years after the training.  The regulations also clarify that the use of audio, video, or computer technology can enhance, but not replace classroom, webinar, or e-learning training.
 
According to the substantive regulation changes to the anti-sexual harassment supervisor training, the training must cover:
  • How to identify behavior that may constitute unlawful harassment, discrimination, and/or retaliation or abusive conduct under both California and federal law;
  • What steps to take when harassing behavior occurs in the workplace;
  • How to report harassment complaints;
  • Supervisors' obligation to report harassing, discriminatory, or retaliatory behavior of which they become aware;
  • How to respond to a harassment complaint;
  • The employer's obligation to conduct a workplace investigation of a harassment complaint;
  • What constitutes retaliation and how to prevent it;
  • Essential components of an anti-harassment policy; and
  • The effects of harassment on harassed employees, co-workers, harassers and employers.
Pregnancy Disability Leave
In an effort to simplify notice and posting requirements, the DFEH released a unified notice to inform employees of their pregnancy leave rights and obligations under the Pregnancy Disability Leave (PDL) and the California Family Rights Act (CFRA). A sample notice approved by the DFEH is located here 

The new combined posting/notice now must meet the following requirements:
  • Contain information about the FEHA's provisions;
  • Contain information about how to contact DFEH to file a complaint;
  • An employee's right to request reasonable accommodation, transfer, or pregnancy disability leave;
  • Employees' obligations to provide adequate advance notice to the employer of their need for pregnancy disability leave;
  • The employer's requirement, if any, for the employee to provide medical certification to establish pregnancy disability leave;
  • Poster postings must be large enough to be easily read, or be posted electronically, so long as they are in a conspicuous place where employees tend to view it in the workplace;
  • The notice must be translated into every language spoken by at least 10 percent of the workforce;
  • Clarify that PDL need not to be taken in one continuous period of time; and
  • Clarify that eligible employees are permitted to take four months of PDL per pregnancy, not per year.
Additionally, a transgender individual who is disabled by pregnancy is not excluded from the pregnancy, childbirth, or related medical conditions provisions.

Employers are still required to distribute a copy of the appropriate notice as soon as practicable after an employee tells the employer of her pregnancy.  However, if the employer publishes an employee handbook, this notice must also be included in the next published employee handbook, whereas before it was simply "encouraged" to be included in the handbook.   

Generally, failure to post the notice precludes an employer from denying pregnancy disability leave or taking other adverse action against the employee for failure to give the employer advance notice of the leave.
EMPLOYER TAKE AWAY
The amended regulations under FEHA mandate specific written policy and practice changes to an employer's policy on anti-discrimination, harassment, and retaliation.  The amendments incorporate those changes and others with regard to supervisor training on these policies.  Employers must also update their poster and notices to employees on their pregnancy leave rights and obligations.  Supervisors, managers and human resource personnel should understand the changes in these policies.  Incorporating these changes into an employee handbook is an integral step in providing notice to all employees of these and other employment policies.
   
Rynn & Janowsky, LLP's team of employment law attorneys are always available to assist clients in any employment law related matter.  
Our Employment Law Legal Team
Rynn & Janowsky, LLP | rj@rjlaw.com | http://www.rjlaw.com