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Heads up, California employers! Ninety pages of new regulations under California’s Fair Employment and Housing Act (FEHA) go into effect on April 1, 2016. These regulations require covered employers (those with five or more employees) to have a harassment, discrimination, and retaliation prevention policy that:

  • Is in writing.
  • Lists all current protected categories under FEHA. The protected categories include:
    • Age (40 and over).
    • Ancestry.
    • Color.
    • Religious creed (including religious dress and grooming practices).
    • Denial of family and medical care leave.
    • Disability (mental and physical) including HIV and AIDS.
    • Marital status.
    • Medical condition (cancer and genetic characteristics).
    • Genetic information.
    • Military and veteran status.
    • National origin (including language use restrictions).
    • Race.
    • Sex (which includes pregnancy, childbirth, breastfeeding, and medical conditions related to pregnancy, childbirth, or breastfeeding).
    • Gender, gender identity, and gender expression.
    • Sexual orientation.
  • Specifies that employees are protected from illegal conduct from co-workers and third parties, as well as supervisors and managers.
  • Creates a confidential complaint process that ensures a timely response, impartial investigation by qualified personnel, documentation and tracking, appropriate remedial actions and resolutions, and timely closure.
  • Informs employees of several avenues for making complaints other than to a direct supervisor.
  • Requires supervisors to report any complaints of misconduct to a designated company representative.
  • Makes clear that employees will not be exposed to retaliation as a result of making a complaint or participating in any workplace investigation.

Employers must distribute their policy through one or more of the following methods:

  • Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return.
  • Sending the policy via email with an acknowledgment return form.
  • Posting current versions of the policies on a company intranet with a tracking system that ensures all employees have read and acknowledged receipt of the policies.
  • Discussing policies upon hire and/or during a new hire orientation session.
  • Any other way that ensures employees receive and understand the policies.

Additionally, if the workforce contains persons who speak a language other than English, then the employer must translate the policy into every language that is spoken by at least 10 percent of the workforce.

Sexual Harassment Training and Education

The new regulations also expand the required topics that must be included in the training mandated by Cal. Gov’t Code § 12950.1. These new topics include:

  • Remedies available for sexual harassment victims in civil actions, and potential employer/individual exposure/liability.
  • Supervisor’s duty to report sexual harassment, discrimination, and retaliation of which he or she is aware.
  • Strategies to prevent harassment and the steps necessary to take appropriate remedial measures to correct harassing behavior, which includes an employer’s obligation to conduct an effective workplace investigation of a harassment complaint.
  • Information on “abusive conduct,” which includes:
    • A review of the definition of abusive conduct.
    • The negative effects that abusive conduct has on the victim of the conduct as well as others in the workplace.
    • The detrimental consequences of abusive conduct on employers — including a reduction in productivity and morale.
    • The elements of abusive conduct, including conduct undertaken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests (including performance standards).
    • Examples of abusive conduct.
    • A reminder that a single act does not constitute abusive conduct, unless the act is especially severe or egregious.

The new regulations also require employers to retain all sexual harassment training materials for at least two years. This includes sign-in sheets, certificates of completion, and copies of all written or recorded course materials (including questions and answers).

Additional Changes

In addition to the changes previously outlined, the new regulations also clarify information on the following topics:

  • National origin discrimination.
  • Sex/gender discrimination.
  • Sexual harassment.
  • Pregnancy, childbirth, or related medical conditions.
  • Pregnancy disability leave.
  • Religious creed discrimination.
  • Disability discrimination.
  • Contractor nondiscrimination compliance.

Going Forward

Take the following actions now in order to be in compliance with the new regulations:

  1. Review the new regulations and update your policy accordingly.
  2. Provide employees with a copy of your updated policy.
  3. Download and post the new “Your Rights and Obligations as a Pregnant Employee.”
  4. Ensure that the California-mandated sexual harassment and abusive conduct training (AB 1825) you provide your supervisory employees is up-to-date with the new requirements. (As of April 1, 2016, the ThinkHR Learn course is updated to meet the requirements.)

ThinkHR is currently updating the policies in our handbook builder in addition to the relevant sections of California discrimination materials in Comply to reflect these important regulatory changes.